Citation Nr: 1752707 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-32 466A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES Entitlement to an initial rating in excess of 10 percent for a right knee disorder, characterized as degenerative joint disease of the right knee and postoperative residuals of arthroscopic surgery, to include the question of whether separate compensable ratings are for assignment on the basis of instability and meniscal damage. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from October 1987 to September 1990; May 2004 to August 2004; September 2004 to October 2005; and June 2010 to January 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in July 2015 for further development. The RO has issued a June 2017 rating decision in which it granted service connection for a right knee scar. A noncompensable rating was assigned effective January 31, 2008. There has been no appeal of this rating decision. The Board also remanded the issue of entitlement to service connection for alcohol abuse, depression, anxiety, a sleep disturbance, and obstructive sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD). Pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), and the instructions in the remand, the RO issued a statement of the case in June 2017. The Veteran has not filed a substantive appeal. Consequently, the issue is not before the Board. The Veteran was scheduled to presented testimony at a Board hearing in February 2015. Prior to the hearing, the Veteran withdrew his request for the hearing. FINDINGS OF FACT 1. The Veteran's service-connected right knee disability, characterized as degenerative joint disease of the right knee and postoperative residuals of arthroscopic surgery, is manifested by limitation of flexion and full extension. It is not manifested by leg flexion limited to 30 degrees, ankylosis, or impairment of the tibia and fibula. 2. The Veteran's service-connected right knee disability, characterized as degenerative joint disease of the right knee and postoperative residuals of arthroscopic surgery is not manifested by recurrent subluxation or lateral instability. 3. Effective October 4, 2012, the Veteran's service-connected right knee disability, characterized as degenerative joint disease of the right knee and postoperative residuals of arthroscopic surgery is manifested by frequent episodes of "locking," pain and effusion. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including § 4.7 and Codes 5256, 5259-5262 (2017). 2. The criteria for entitlement to separate disability evaluation for the Veteran's service-connected right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including § 4.7 and Code 5257 (2017). 3. Effective October 4, 2012, the criteria for entitlement to separate disability rating of 20 percent for the Veteran's service-connected right knee disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including § 4.7 and Code 5258 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS No further notice is required regarding the downstream issue of a higher initial rating for the Veteran's right knee disability as it stems from the grant of service connection, and no prejudice has been alleged. The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2017). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was given VA examinations in August 2008, October 2012, February 2014, and June 2106. As such, the Board will proceed to the merits. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Pursuant to Diagnostic Code 5260, a 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent rating is warranted for leg flexion limited to 30 degrees. A 30 percent rating is warranted for leg flexion limited to 15 degrees. Pursuant to Diagnostic Code 5261, a 10 percent rating is warranted for leg extension limited to 10 degrees. A 20 percent rating is warranted for leg extension limited to 15 degrees. A 30 percent rating is warranted for leg extension limited to 20 degrees. A 40 percent rating is warranted for leg extension limited to 30 degrees. A 50 percent rating is warranted for leg extension limited to 45 degrees. Separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension), both codified at 38 C.F.R. §4.71a, may be assigned for disability of the same joint. See VAOPGCPREC 9- 2004. The right knee has been evaluated under Diagnostic Code 5024. Diagnostic Code 5024, for tenosynovitis, instructs the rater to evaluate under the relevant code sections for limitation of motion, as referenced above. Pursuant to Diagnostic Code 5259, a 10 percent rating is warranted for the symptomatic removal of semilunar for cartilage. In addition, the Board notes that ankylosis of the knee will be rated as 60 percent disabling if at an extremely unfavorable angle, in flexion at an angle of 45 degrees or more. A 50 percent rating will be assigned if the knee is in flexion between 20 degrees and 45 degrees. The disability will be rated at 40 percent if it is in flexion between 10 degrees and 20 degrees. A 30 percent rating will be assigned if there is ankylosis at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Impairment of the tibia and fibula will be rated as 40 percent disabling where there is a nonunion, with loose motion, requiring brace. A malunion of the tibia and fibula will be rated as 30 percent disabling if there is marked knee or ankle disability, 20 percent disabling if there is moderate knee or ankle disability, and 10 percent disabling if there is slight knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The law permits separate ratings for arthritis and instability of a knee. Specifically, the VA General Counsel has held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 because the arthritis would be considered an additional disability warranting a separate evaluation even if the limitation of motion was not compensable. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997). Likewise, the VA General Counsel has also held that, when x-ray findings of arthritis are present and a Veteran's knee disability is evaluated under Code 5257, the Veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98 (Aug. 14, 1998). Pursuant to 38 C.F.R. § 4.71a (Diagnostic Code 5257), a rating of 10 percent is warranted when the Veteran experiences slight subluxation or lateral instability. A rating of 20 percent is warranted when the Veteran experiences moderate subluxation or lateral instability. A rating of 30 percent is warranted when the Veteran experiences severe subluxation or lateral instability. Dislocation of the semilunar cartilage of the knee with frequent episodes of "locking," pain and effusion into the joint warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The Veteran underwent a VA examination in August 2008 (VBMS, 7/25/08). The claims file was reviewed in conjunction with the examination. The Veteran reported daily pain. He also reported increased pain and swelling with increased activity. He denied taking any medication for it. He denied deformity, giving way, instability, and weakness. He reported pain, stiffness, incoordination, and decreased speed of motion. He reported moderate flare-ups that occurred weekly, and which last for hours. Upon examination, the Veteran's gait was normal. There was tenderness and abnormal motion in the knee. There was crepitation. There was no mass behind the knee; no clicks or snaps; no grinding; no instability; and no patellar abnormality. The meniscus was surgically absent. McMurray's test was negative. The Veteran achieved flexion from 0 to 120 degrees; and he had normal extension. There was no objective evidence of pain following repetitive motion. There was no additional limitation of motion following three repetitions. X-rays showed no acute bony or articular abnormality. The examiner noted that the Veteran was employed full time and had not lost any time from work as a result of his knee disability. There were no significant effects on his usual occupation as an insurance salesman. The disability caused moderate limitations on playing sports; and mild limitation on his ability to exercise. An October 2008 private treatment report (Dr. G.A.N.) reflects that the Veteran sought treatment for right knee pain (VBMS, 11/4/08). He was noted to have had a right ACL and meniscus repair in 2005. Options for treatment were discussed with the Veteran. The options included no treatment, physical therapy, bracing, oral medications, modification of activities, and revision ACL reconstruction. He was advised to work on authorization so that Dr. G.A.N. could evaluate hip and back pain prior to revision surgery of the knee. A January 2009 Otsago Memorial Hospital Report reflects that the Veteran reported long-standing right knee pain with subjective instability. He was thought to have recurrent subjective instability with mild arthrosis. He underwent extensive synovectomy and microfracture chondroplasty trochlea. Four weeks convalescent leave was recommended (VBMS, 1/27/09). The Veteran underwent a VA examination in October 2012 (VBMS, 10/4/12, p. 54). The examiner reviewed the claims file in conjunction with the examination. The Veteran reported constant pain that was worse when walking up stairs or carrying a heavy load. He stated that he feels a "pop" at times. He also reported "lots" of swelling if he engages in physical activity. He reported that the knee does catch at times. He reported that the knee swells with activity. He denied flare-ups. Upon examination, the Veteran achieved flexion from 0-120 degrees with no objective evidence of pain. He achieved full extension with no objective evidence of pain. There was no additional limitation of motion after three repetitions of motion. The only noted functional loss was the aforementioned limitation of motion. There was no weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy, instability, disturbance of locomotion, pain on palpation, interference with sitting or standing, or pain on weight bearing. Muscle strength was normal. Joint stability tests were normal. There was no history of patellar subluxation/dislocation. The examiner noted that the Veteran has undergone surgical procedures on his meniscus and that he has frequent episodes of joint "locking", joint pain, and joint effusion. The Veteran had a scar; but it was neither painful and/or unstable and was not greater than 39 square cm. The Veteran did not use any assistive devices. Regarding functional limitations, the examiner noted that the Veteran would need to limit full flexion of right knee. He would also have to use caution in certain positions that can cause his knee to feel unstable or lock up. The Veteran underwent a VA examination in February 2014 (VBMS, 3/18/14). The examiner reviewed the claims file in conjunction with the examination. The Veteran reported daily pain ranging from 4/10 to 9/10 (depending on his level of activity. It was 5/10 at the time of the examination). He denied taking any pain medications. Upon examination, the Veteran achieved flexion to 135 degrees without objective evidence of pain. There was no additional limitation of movement following three repetitions of motion. There was no pain on palpation. Muscle strength testing was normal. Instability testing was normal. There was no evidence or history of subluxation or dislocation. The Veteran had a scar; but it was neither painful and/or unstable and was not greater than 39 square cm. The Veteran denied using any assistive devices for locomotion. The examiner concluded that the disability did not impact the Veteran's ability to work. With regards to flare-ups, the Veteran reported that he experiences them after drill weekends. Pain increased to 8/10 or 9/10; and he stated that this makes normal activities difficult. He was not having a flare-up at the time of the examination. On examination, there was no weakness, fatigue, or incoordination noted either on initial range of motion testing, on repetitive motion testing, or throughout the examination (which lasted more than an hour). The examiner found that it was not likely that pain, weakness, fatigue, or incoordination or flare-ups would significantly limit the Veteran's knees when they were used repeatedly over a period of time, any more than would normally be expected when caused by normal muscle fatigue. The Veteran underwent a VA examination in June 2016. The examiner reviewed the claims file in conjunction with the examination. The Veteran denied flare-ups. He achieved full flexion from 0-140 degrees, and full extension. There was no pain noted on examination. There was no evidence of pain with weight bearing; and there was no evidence of crepitus. The Veteran was able to perform repetitive testing with at least three repetitions. Functional ability was not significantly limited by pain, weakness, fatigability, or incoordination with repeated use over a period of time. Muscle strength testing was normal. There was no atrophy. Joint stability tests were normal. There was no history of recurrent effusion. The examiner noted a surgical scar that was 14 cm x .2 cm. It was neither painful nor unstable. The examiner found that the Veteran's disability did not impact the Veteran's ability to perform any type of occupational task. In February 2017, the Veteran had an injection into his right knee to relieve pain (VBMS, Saginaw, 6/12/17, pgs. 2-5). Examination of the right knee revealed that the Veteran achieved flexion from 0-115 degrees (VBMS, Detroit, 6/12/17, p. 7). There was negative joint line tenderness, negative effusion, negative laxity, and negative crepitus. There was no pain with internal and external rotation. There was anterior knee pain with squatting. X-rays showed no significant degenerative joint disease. He continued to not require any knee braces or assistive devices. He rated the pain in his right knee at 5/10 - 6/10 (VBMS, Detroit, 6/12/17, p. 2). Analysis With respect to limitation of motion and the period on appeal, the Board notes that the Veteran's right knee disability is rated as 10 percent disabling except for the periods of January 8, 2009 to March 1, 2009 (when the Veteran received a 100 percent rating for convalescence following surgery), and from June 16, 2010 to January 27, 2011 (when the Veteran returned to active duty). In order to warrant a rating in excess of 10 percent, the Veteran's disability would have to be manifested by leg flexion limited to 30 degrees. The Veteran underwent examinations in August 2008, October 2012, February 2014, and June 2016. He achieved flexion to 120 degrees, 120 degrees, 135 degrees, and 140 degrees respectively. All four examiners noted that there was no objective evidence of pain. All four examiners noted that there was no additional limitation of motion following three repetitions of movement. With regards to flare-ups, the Veteran reported (at his February 2014 examination) that he experiences increases in pain after drill weekends. He stated that the increased pain makes normal activities difficult. The examiner opined that the Veteran did not experience weakness, fatigue, or incoordination on initial range of motion testing, on repetitive motion testing, or throughout the examination. The examiner found that it was not likely that pain, weakness, fatigue, or incoordination or flare-ups would significantly limit the Veteran's knees when they were used repeatedly over a period of time, any more than would normally be expected when caused by normal muscle fatigue. The Board finds that there is no evidence that the Veteran's right knee disability has been manifested by leg flexion limited to 30 degrees. In regards to DeLuca criteria, there is no medical evidence to show that there is any additional loss of motion of the right knee due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 10 percent. Additionally, the Board notes that, at all four examinations, the Veteran achieved full extension without any objective evidence of pain. Consequently, the Board finds that a separate rating for limitation of extension is not warranted. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for an initial or staged rating in excess of 10 percent for the Veteran's right knee disability must be denied. See Gilbert v. Derwinski, 1 Vet. App 49, 53-54 (1990). Instability With regards to whether a separate rating is warranted for instability, the Board notes that all four VA examiners specifically found that there was no instability. The October 2012 and February 2014 VA examiners also specifically stated that there was no history of patellar subluxation/dislocation. The only time instability was noted is a January 2009 hospital report in which the Veteran underwent surgery. His right knee disability is already rated as 100 percent disabling during this period. Consequently, the Board finds that a preponderance of the evidence weighs against a finding that a separate rating is warranted for subluxation or lateral instability. "Locking" At the Veteran's October 2012 VA examination, the Veteran reported constant pain, a "pop" feeling at times, "lots" of swelling if he engages in physical activity, and catching. Upon examination, the examiner noted that the Veteran has undergone surgical procedures on his meniscus and that he has frequent episodes of joint "locking", joint pain, and joint effusion. Regarding functional limitations, the examiner noted that the Veteran would need to limit full flexion of right knee. He would also have to use caution in certain positions that can cause his knee to feel unstable or lock up. Based on such evidence, the Board finds that effective October 4, 2012, a separate rating of 20 percent is warranted pursuant to Diagnostic Code 5258. A rating in excess of 20 percent is not warrant in so far as 20 percent is the maximum allowable rating under this code. ORDER A rating in excess of 10 percent for the Veteran's service connected degenerative joint disease of the right knee and postoperative residuals of arthroscopic surgery is denied. A separate rating for instability and meniscal damage of the right is denied. Effective October 4, 2012, a separate rating of 20 percent is granted for the Veteran's right knee disability, manifested by frequent episodes of "locking," pain and effusion. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs