Citation Nr: 1752412	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO. 11-18 865	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to an evaluation in excess of 20 percent for status post medial-lateral cartilage residuals of the right knee (also characterized as tear of the lateral meniscus of the right knee, and right knee limitation of motion). 

2. Entitlement to an increased evaluation for right knee instability, rated as noncompensably disabling prior to July 3, 2013, and as 10 percent disabling thereafter. 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

P. Noh, Associate Counsel

INTRODUCTION

The Veteran had active military service from March 1972 to July 1975. 

This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

By way of background, this claim was previously denied in a January 2015 Board decision, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a December 2015 Joint Motion for Remand (JMR), the Court issued an order vacating the Board's January 2015 decision, and remanded these issues to the Board for action consistent with the JMR. In June 2016, the Board remanded the claim to the RO for action consistent with the JMR. In April 2017, the Board again remanded the claim to the RO to obtain VA treatment records. That development has been accomplished, and the claim has now been returned to the Board for further action. See Stegall v. West, 11 Vet. App. 268 (1998). 

During the course of the appeal, the RO rated the Veteran's right knee disability under different diagnostic codes and characterized the disability as tear of the lateral meniscus of the right knee, right knee limitation of motion, and status post medial-lateral cartilage residuals of the right knee. For the purpose of clarity, the Board will refer to this disability as status post medial-lateral cartilage residuals of the right knee ("cartilage residuals of the right knee"). The RO granted an increase from 10 percent to 20 percent for the cartilage residuals of the right knee, effective December 30, 2009. As for the right knee instability, the disability was rated as noncompensably disabling prior to July 3, 2013, and as 10 percent disabling thereafter.

The Veteran was scheduled for a Travel Board hearing in October 2014, but he did not appear for his hearing, and his request for a hearing is deemed withdrawn.


FINDINGS OF FACT

1. For the entire period on appeal, the Veteran has had dislocated semilunar cartilage with frequent episodes of pain and effusion into the right knee joint. 

2. For the entire period on appeal, the Veteran's osteoarthritis of the right knee has been manifested by pain, with flexion limited at worst to 75 degrees and no limitation of extension; but not by ankylosis. 

3. For the entire period on appeal, the Veteran has had slight recurrent instability of the right knee. 


CONCLUSIONS OF LAW

1. The criteria for a rating of 20 percent, the highest rating, for status post medial-lateral cartilage residuals of the right knee have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5258, 5259 (2017).

2. The criteria for a rating of 10 percent for osteoarthritis of the right knee have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2017).

3. The criteria for rating of 10 percent for right knee instability have been met prior to July 3, 2013. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5257 (2017).

4. The criteria for a rating in excess of 10 percent for right knee instability have not been met from July 3, 2013. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5257 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and to Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, and 5107; see also 38 C.F.R. §§ 3.102 and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. 

In this case, VA satisfied its duty to notify the Veteran by way of a January 2010 letter. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. The Veteran received all essential notice, had a meaningful opportunity to participate in the development of his claim, and was not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further, neither the Veteran, nor his representative, alleged prejudice with regard to notice. Accordingly, the VA satisfied its duty to notify. 

In regard to the duty to assist, the Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record contains in-service treatment records, outpatient treatment records, and military personnel records. No other relevant records have been identified and are outstanding. For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records have been fulfilled with respect to the issues on appeal. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded VA medical examinations in January 2010, July 2013, November 2016, and May 2017. Based on the examinations, and the records, VA medical examiners were able to provide adequate opinions. Accordingly, the Board determines that the VA's duty to provide a medical examination and to obtain a medical opinion has been satisfied. 

In conclusion, the Board finds that the duty to assist in this case is satisfied since VA has obtained all relevant identified records and provided the Veteran with VA medical examinations. 38 C.F.R. § 3.159(c)(4). Further, the Board finds the available medical evidence is sufficient for adequate determinations; and there has been substantial compliance with all pertinent VA law and regulations, as to not cause any prejudice to the Veteran.


II. Increased Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. 

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2017). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Veteran's cartilage residuals of the right knee are rated under Diagnostic Code 5258, and instability of the right knee is rated under Diagnostic Code 5257. The Veteran's disability can be rated separately under Diagnostic Codes 5257, 5259, 5260, and 5261, but any separate rating must be based on additional compensable disabling symptomatology. VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (1998). 

Diagnostic Code 5003 states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When, however, the limitation of motion of the specific joint 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. Diagnostic Code 5003 (2017).

Separate ratings under Diagnostic Code 5260, for limitation of flexion of the leg, and Diagnostic Code 5261, for limitation of extension of the leg, may be assigned for disability of the same joint, but only where the criteria for a compensable rating are met under each diagnostic code. VAOGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (2004). 

Pursuant to Diagnostic Code 5260, a 10 percent rating is warranted for knee flexion limited to 45 degrees. A 20 percent rating is warranted for knee flexion limited to 30 degrees. A maximum 30 percent rating is warranted for knee flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). 

As for extension, pursuant to Diagnostic Code 5261, a 10 percent rating is warranted for knee extension limited to 10 degrees. A 20 percent rating is warranted for knee extension limited to 15 degrees. A 30 percent rating is warranted for knee extension limited to 20 degrees. A 40 percent rating is warranted for knee extension limited to 30 degrees. A maximum 50 percent rating is warranted for knee extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017).

In regards to instability, Diagnostic Code 5257 states a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of the knee. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability of the knee. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017).

As for dislocation of cartilage, Diagnostic Code 5258 states that cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint warrants a rating of 20 percent, the highest rating available. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2017).

Other diagnostic codes relating to the knee are Diagnostic Code 5256 (ankylosis), Diagnostic Code 5262 (impairment of tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). Those disabilities are not shown on examination, and the Board thus finds that application of those diagnostic codes is not warranted. 38 C.F.R. § 4.71a (2017).

As an initial matter, the Board notes that when dealing with an increased rating claim, the appropriate period on appeal dates to one year prior to the date of the Veteran's claim. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Here, the Veteran applied for an increased rating on December 30, 2009. As such, the issue before the Board is entitlement to an increased rating in excess of 10 percent for the one year prior to the Veteran's claim for an increase, which is December 30, 2008.

A review of the medical evidence of record shows a long history of right knee pain with no significant limitation in motion of the right knee despite evidence of arthritis, mild instability, and effusion in the knee joints. 

In the January 2010 VA examination, the Veteran complained that he was unable to lift or bend due to his right knee. However, despite the complaints, the Veteran did not use any assistive device and even worked during this period. On examination, the Veteran had mild limp gait, small effusion, and he had full range of motion from 0 to 140 degrees with crepitus and pain in all three compartments. On repetitive use test, there were no additional limitations other than increased pain without further loss of motion. The Veteran exhibited no instability to varus or valgus stress. Further, he reported no episodes of flare-ups.

In the July 2013 VA examination, the Veteran did not exhibit any significant limitation of motion in his right knee. Specifically, on examination, the Veteran exhibited right knee flexion to 120 degrees with painful motion at 100 degrees, and no limitation on extension. On repetitive use test, the Veteran did not have additional limitations other than increased pain on movement. The Veteran had normal muscle strength in his right knee, and only mild medial-lateral instability. The Veteran used a cane and had an antalgic gait with quick component to the right. The Veteran again reported no episodes of flare-ups. These findings are consistent with the treatment records. For instance, a September 2012 magnetic resonance imaging (MRI) scan of the right knee revealed mild degenerative changes. A September 2012 x-ray scan of the knee revealed mild tricompartmental degenerative joint disease. Further, the treatment records show that in December 2013, the Veteran's range of motion in his right knee was 125 degrees on flexion with no limitation on extension. In addition, the records show that in November 2013 the Veteran used a single point cane and exhibited antalgic gait. The findings from the VA examination and the treatment records are consistent with the determination that the Veteran has no more than mild limitation in his right knee. 

In the November 2016 VA examination, the Veteran exhibited more limitations in his right knee. Specifically, the Veteran stated that during flare-ups, he would experience increased pain and stiffness. On examination, the Veteran's flexion was to 120 degrees with no limitation on extension. On repetitive use testing, the Veteran had no additional functional loss or range of motion. The Veteran did experience pain with weight bearing and crepitus. The Veteran's muscle strength was slightly weakened with four out of five strength on flexion and three out of five on extension. However, the Veteran exhibited no evidence of ankylosis, recurrent subluxation, or lateral instability. As such, the VA examiner opined that due to the Veteran's mild to moderate bilateral stiffness, weakness, crepitus, and tenderness, the Veteran's right knee condition worsened to moderate. Although the Veteran exhibited worsening at the VA examination, the treatment records in 2016 show that the Veteran exhibited normal gait, station and coordination. Further he had normal reflexes and no muscle atrophy. Even an August 2016 x-ray scan of the right knee revealed unremarkable findings with no significant degenerative changes. Despite the mild objective findings, around August 2016, the Veteran reported increased knee pain, buckling, and inflammation. 

In the May 2017 VA examination, the Veteran reported worsening symptoms such as edema, inflammation, pain with weight-bearing and non-weight-bearing, and falling as a result of his right knee giving away. However, the Veteran reported no episodes of flare-ups. On examination, the Veteran was able to flex to 75 degrees with no limitation on extension. The Veteran was unable to perform repetitive use testing due to excessive pain with attempted repetitive testing. The Veteran had slight lateral instability. Further, the Veteran's muscle strength was slightly impaired with four out of five for flexion and extension. Despite the worsening noted at the VA examination, the treatment records show that the Veteran complained of increased knee pain, but no abnormalities were noted for his lower extremities. 

Despite the discrepancies between the treatment records and the VA examinations, the Board finds, in the light most favorable to the Veteran, that the Veteran has symptoms equivalent to frequent episodes of pain and effusion in the right knee joint to warrant 20 percent rating pursuant to Diagnostic Code 5258. The Board finds Diagnostic Code 5259 is not applicable as there is no evidence of record that the Veteran had a complete removal of cartilage. In fact, a September 2012 MRI scans of the knee notes of maceration of the posterior horn of the lateral meniscus. Accordingly, as the Veteran has symptoms related to dislocated semilunar cartilage but no removal of cartilage, the Board assigns 20 percent rating-the highest schedular rating available-pursuant to Diagnostic Code 5258, rather than a 10 percent rating pursuant to Diagnostic Code 5259. 

Further, the Board finds that the Veteran is entitled to a separate 10 percent rating under Diagnostic Code 5003 for osteoarthritis of the right knee as the Veteran has a long history of knee pain with 2012 x-ray and MRI scans that revealed mild tricompartmental degenerative joint disease. The Board finds that the Veteran does not qualify for a compensable rating under Diagnostic Code 5260 or 5261 as the Veteran, at his worst, had flexion limited to 75 degrees and no limitation on extension. The Board has examined the evidence but does not find evidence to support a finding that a greater level of limitation of motion due to pain or other factors has been shown that would warrant a compensable rating under Diagnostic Code 5260 or 5261. Thus, because the Veteran has demonstrated arthritis on x-ray finding and noncompensable limitation of motion with evidence of painful motion, a separate 10 percent rating, but no higher, is warranted under Diagnostic Code 5003. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2017). 

In addition, the Board finds the Veteran has slight lateral instability in the right knee, as noted in the July 2013 and May 2017 VA examinations. As such, the Board assigns a 10 percent disability rating under Diagnostic Code 5257 for the entire appeal period. However, as the evidence reflects that the Veteran's right knee instability has been no more than slight throughout the appeal period, a rating in excess of 10 percent is not warranted under Diagnostic Code 5257.


ORDER

Entitlement to an evaluation in excess of 20 percent for status post medial-lateral cartilage residuals of the right knee is denied. 

Entitlement to a 10 percent rating for degenerative arthritis of the right knee is granted. 

Prior to July 3, 2013, a rating of 10 percent for right knee instability is granted.

Entitlement to rating in excess of 10 percent for right knee instability from July 3, 2013 is denied.  




____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs