Citation Nr: 1637884	
Decision Date: 09/27/16    Archive Date: 10/07/16

DOCKET NO.  10-36 369	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for tear of the medial meniscus of the left knee.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran served on active duty from April 1981 to October 1993.

This matter initially came before the Board of Veterans' Appeals (Board) from July 2009 rating decision issued by the RO.  

In March 2016, the Board remanded the claim on appeal for additional development of the record. The development has been completed and the case has been returned to the Board for appellate consideration.

In August 2016, the Veteran expressed disagreement with the 10 percent rating assigned for the unspecified trauma and stressor related disorder in the July 2016 rating decision. The Board's review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on this issue. The Board will not therefore accept jurisdiction over it at this time, but it will be the subject of a subsequent Board decision, if otherwise in order.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.


FINDING OF FACT

The Veteran's left knee disorder is characterized by painful range of motion in the left knee with full extension and flexion at most limited to 90 degrees.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for tear of the medial meniscus of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). VCAA applies to the instant claims. 

VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify in this case was satisfied by letter sent to the Veteran in March 2009. The claim was last adjudicated in May 2016.

The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claims. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. 

In addition, the Veteran was afforded multiple VA examinations in connection with his claim for increased rating. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

The VA examinations obtained are adequate with regard to the increased rating claim on appeal because the examinations were performed by medical professionals who conducted thorough examinations, and reported findings pertinent to the rating criteria. 

VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). See Monzingo v Shinseki, 26 Vet. App. 97 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion" ).

The appeal was remanded to the RO in March 2016. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The remand directed that the AOJ schedule the Veteran for new examination to evaluate the severity of his left knee disability. The Veteran received examination in April 2016. Accordingly, the Board finds that there has been substantial compliance with the remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

In summary, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for VA examinations. 

Increased ratings- Knees

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  

The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12Vet. App 119 (1999). Here the right knee and left knee disabilities have not significantly changed and uniform evaluations are warranted.

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.

The Veteran alleges that his left knee disability meets the criteria for a higher rating. The Board has examined the record, however, and finds that the preponderance of the evidence is against the granting of an increased benefit and the appeal will be denied. 

The rating for the Veteran's left knee disability has been assigned pursuant to diagnostic code (DC) 5257. Under DC 5257, a 10 percent rating is assigned for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability.

Evaluations may also be assigned for limitation of motion. (See 38 C.F.R. § 4.71a, DC 5260, 5261). Under DC 5260, a 10 percent rating is assigned for limitation of flexion to 45 degrees. A 20 percent contemplates limitation of flexion to 30 degrees. A rating of 30 percent requires limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. 

The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).

Under DC 5261, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. 

The January 2009 report of VA examination reflects the Veteran's complaint of progressively worsening intermittent left knee pain. He reported having left knee weakness, stiffness and giving way. There had been no swelling, increased heat or locking of the joint. Flare-ups of knee pain were precipitated by prolonged standing (more than 3 hours), climbing stairs and running more than 2 miles. He treated his flare-ups by rest, elevation medication and non weight-bearing on his left lower extremity. He wore an elastic knee brace with medial and lateral stays. He reported that his left knee disability affected his life in that he was unable to do any running or jumping rope. His knee disability also limited the length of time that he stood which was interfering with his work as an ice-cream parlor salesperson on the weekends. 

Objectively, he had full extension and flexion to 110 degrees. There was no increased heat and no fluid accumulation in the joint. There was a slight crepitus of the patellofemoral joint. He had a slight laxity of the anterior cruciate ligament with an endpoint but no true instability. He had a positive McMurray test on the lefts for his left medial meniscus. There was no ligamentous instability of the collateral ligaments. MRI of the left knee showed extensive degeneration in the mid section of the medial meniscus with a vertical 3-inch tear. Lateral meniscus was normal. Repetitive motions had no effect on range of motion, pain, fatigability, weakness or endurance.

The July 2009 report of VA examination reflects the Veteran's complaint of intermittent left knee pain (0-5/10). Flare-ups of knee pain occurred daily, lasting 30 minutes at a time and were precipitated by prolonged standing (more than 3 hours), running or bouncing. His flare-ups were relieved by heat and medication. He had an elastic knee brace that he wore as needed. He reported that his left knee disability interfered with his daily activities and work.  

Objectively, he had a 5-degree genu varus of his left knee. There was no swelling of the knee. There was a slight crepitus of the patellofemoral joint. He had full extension and flexion to 125 degrees with pain. There was no swelling or increased heat at the palpation of his left knee. There was no ligamentous instability. He had a slight laxity of the anterior cruciate with a 1+ drawer test with an end point. He had a positive McMurray test but negative Lachman test. Repetitive motions had no affect or additional limitation of range of motion, pain, fatigability, weakness, coordination or endurance.

The April 2016 report of VA examination reflects the Veteran's complaint of increased intermittent pain and stiffness. He also complained of left knee giving way and swelling. He had increased pain with prolonged standing and walking. He reported having daily intermittent flare-ups of pain with prolonged standing and walking that lasted several hours. He reported that he had pain with motion and limitation of motion. 

Objectively, he had full extension and flexion to 90 degrees with pain. There was evidence of pain with weight bearing and tenderness to deep palpation at the medial region. There was objective evidence of crepitus. However, the Veteran was able to perform repetitive use testing with no additional functional loss or range of motion. Muscle strength testing was normal and there was no ankylosis. There was no joint instability. The examiner noted that the Veteran's left knee disability impacted his ability to perform occupational tasks in that he had physical limitations with prolonged standing and walking. 

The criteria have not been met for ratings in excess of 10 percent for the left knee disability. The evidence does not reflect that the Veteran's left knee disability resulted in limitation of flexion to 30 degrees or limitation of extension to 15 degrees. Rather, the evidence at most shows that the Veteran's flexion of the left knee was limited to 90 degrees (April 2016 examination). As the Veteran had full extension at all times, a separate rating for limitation of extension is not warranted. 

The Veteran had a slight laxity of the anterior cruciate ligament with an endpoint but did not demonstrate true instability or other ligamentous instability.  Thus, higher (or separate) ratings under Diagnostic Code 5257 are not warranted. 

Ankylosis is not demonstrated; thus, a rating in excess of 10 percent under Diagnostic Codes 5256 is not warranted. The Veteran is separately rated for residual fracture of the left proximal fibula but has not separately applied for an increase rating for that disability; thus, a rating in excess of 10 percent under Diagnostic Codes 5262 is not warranted. While the Veteran reported having knee instability, joint stability testing during the April 2016 VA examination found no history of recurrent subluxation or lateral instability and other stability findings were normal. For these reasons, the Board finds that the 10 percent rating adequately contemplate the manifestations of the Veteran's left knee disability.

The Board has also considered the Veteran's assertions as to the severity of his symptoms; however, the Board finds the objective medical evidence to be more probative than his lay assertions in determining that his left knee disability did not meet the criteria for a rating in excess of 10 percent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is competent to report that he has pain on use and limited motion. However, the examinations disclosing that he did not have limitation of motion warranting a higher rating or joint instability, prepared by skilled professionals, are more probative than his assertions in support of a claim for benefits. The Veteran has not provided evidence suggestive of disability of a greater severity to warrant higher ratings.

Though the Veteran reported functional loss and/or functional impairment of the knees after repetitive use manifested by painful motion, in the reports of VA examination of record, the examiners found there was no objective evidence of these limitations and progressive limitations were not demonstrated with repeated range of motion testing during examination. There were no findings of additional functional loss on repetitive use testing.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The preponderance of the evidence is against the claims, and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).

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 disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008).

Under the law, 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. 

The symptomatology and impairment caused by the Veteran's left knee disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran's left knee disability is manifested by painful range of motion. The degrees of impairment and symptoms are included in the criteria found in the rating schedule for the knee disabilities. Because the schedular rating criteria are adequate to rate the knee disability, the other two steps in the analysis of extra-schedular ratings need not be reached. 

The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, a comparison of the Veteran's symptoms and functional impairments resulting from his disability with the pertinent schedular criteria does not show that his service-connected left  knee disability at issue present "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b).

The limitation of motion of the Veteran's left knee disability is specifically contemplated by the criteria discussed above, including the effect of the Veteran's left knee disability on his occupation and daily life. In the absence of exceptional factors associated with the left knee disability, 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).

According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. 

The Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. Further, the issue of a TDIU is not reasonably raised by the record. Therefore, it is not part of the rating appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009).


ORDER

An initial rating in excess of 10 percent for tear of the medial meniscus of the left knee is denied. 



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs