Citation Nr: 1752997 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-41 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to January 9, 2012. 3. Entitlement to an increased evaluation for a left knee disorder (characterized as patellofemoral syndrome and osteoarthritis) in excess of 10 percent prior to September 11, 2012 and in excess of 20 percent from November 1, 2012. 4. Entitlement to an increased evaluation in excess of 10 percent for patellofemoral syndrome of the right knee. REPRESENTATION Veteran represented by: Colin Kemmerly, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty from May 1986 to August 1990. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery Alabama. In the June 2011 rating decision, the RO partially granted the Veteran's claims for increased evaluations of his bilateral knee disabilities; 10 percent evaluations were assigned, effective from January 27, 2011. The Veteran expressed disagreement with the assigned evaluations, and the current appeal ensued. The Veteran was granted a temporary 100 percent rating for his left knee, effective September 11, 2012 through November 1, 2012. In a July 2016 rating decision, the RO increased the Veteran's rating for his left knee and assigned a 20 percent rating based on osteoarthritis of the left and right knee, effective November 1, 2012. Although the increased 20 percent rating contemplated both knees, the RO continued the Veteran's 10 percent rating for patellofemoral syndrome of the right knee. These partial allowances have created "staged" ratings and do not constitute a full grant of the benefits sought ratings. Accordingly, the Veteran's claims for increased evaluations for his knee disabilities remain in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). A hearing was held in July 2013 before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing testimony is in the file. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeals of the issues of entitlement to service connection for a back disorder and individual unemployability prior to January 9, 2012. 2. The Veteran's bilateral knee disorder has x-ray evidence of involvement of two or more major joints. 3. The Veteran's left knee disorder has manifested with flexion limited, at worst, to 90 degrees, even considering painful motion and other factors, and symptomatic meniscectomy; the evidence does not show ankylosis, subluxation, instability, dislocated meniscal (semilunar) cartilage, limitation of extension, impairment of the tibia and fibula, or genu recurvatum. 4. The Veteran's right knee disorder has manifested with flexion limited, at worst, to 100 degrees, even considering painful motion and other factors, and symptomatic meniscectomy; the evidence does not show ankylosis, subluxation, instability, dislocated meniscal (semilunar) cartilage, limitation of extension, impairment of the tibia and fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for the issue of entitlement to service connection for a low back disorder have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal for the issue of entitlement to individual unemployability prior to January 9, 2012 have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 3. The criteria for an increased rating in excess of 10 percent prior to September 12, 2012, and in excess of 20 percent rating from November 1, 2012 for a left knee disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5259, 5260, 5299 (2017). 4. The criteria for an increased rating in excess of 10 percent for patellofemoral syndrome of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5259, 5260, 5299 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by a veteran or by his or her authorized representative. Id. In an August 2016 written statement, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the issues of entitlement to servicing connection for a back disorder and individual unemployability prior to January 9, 2012. As to these issues there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these claims and they are dismissed. Duties to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The Veteran was provided with the relevant notice and information. He has not alleged any notice deficiency during the adjudication of that claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA's duty to assist under the VCAA includes helping claimants to obtain pertinent records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c). The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159 (c). VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159 (c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For his increased rating claim, the Veteran was afforded adequate VA examinations that considered his medical history, his treatment records, a physical examination of the Veteran, and a review of his symptoms in accordance with the schedular criteria. Finally, the Board finds that the AOJ sufficiently complied with the remand directives of the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Law and analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2017). Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2017). 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 (2017); Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2017). A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Throughout the period on appeal, the Veteran's bilateral knee disabilities are rated under Diagnostic Codes 5299-5260 and 5260-5003, reflecting his painful motion and radiographic evidence of arthritis. See 38 C.F.R. §§ 4.27, 4.59 (2016); Burton, 25 Vet. App. 1. Under Diagnostic Code 5003 for degenerative arthritis (hypertrophic or osteoarthritis), degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating 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. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id., Diagnostic Code 5003, Notes (1) and (2). The Diagnostic Codes that rate on the basis of limitation of motion of the knee are Diagnostic Codes 5260 and 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5260, which addresses limitation of flexion of the leg, provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261, which addresses limitation of extension. Extension limited to 10 degrees warrants a 10 percent disability rating, extension limited to 15 degrees warrants a 20 percent disability rating, extension limited to 20 degrees warrants a 30 percent disability rating, extension limited to 30 degrees warrants a 40 percent disability rating, and extension limited to 45 degrees warrants a 50 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). The Veteran filed a claim for an increased rating for his bilateral knee disorders in January 2011. The Veteran was afforded a VA examination in May 2011. The examiner noted diagnoses of bilateral patellofemoral syndrome. The Veteran reported pain, stiffness, swelling, weakness, and instability requiring bilateral knee braces. He also experienced flare-ups resulting in increased pain, swelling, and locking. A physical examination showed normal muscle strength with no atrophy. Range of motion testing showed flexion of the left knee to 115 degrees and the right knee to 110 degrees. The Veteran was limited by pain. There was no laxity noted. A McMurray test was negative but the Veteran reported pain and a grind test for chondromalacia patella was positive. There was no deformity, malalignment, drainage, tenderness, edema, redness, heat, spasms, guarding, fatigue, lack of endurance, weakness, atrophy, incoordination, instability, or pertinent abnormal weight-bearing. The examiner noted no functional limitation. An October 2011 treatment record showed a medial meniscus tear of the left knee with less symptoms and equivocal right knee peripatellar pain. Radiographs showed mild medial joint space narrowing, bilaterally and a medial meniscus tear on the left. A physical examination revealed almost no range of motion on the right side. The physician found it hard to do any type of examination although the Veteran did not appear to have significant medial joint line tenderness and some peripatellar pain and discomfort. He had negative Lachman's. The left knee had equivocal medial and lateral joint line tenderness and almost 85 degrees of flexion. In a February 2012 treatment record, the Veteran was diagnosed with derangement of the bilateral menisci. He reported locking of the right knee and pain on the left, aggravated by stairs, squatting, walking, and standing. Range of motion of the right knee from 6 to 112 degrees and range of motion of the left knee was from 4 to 106 degrees. A varus/valgus stress test was negative but there was tenderness to the bilateral medial joint line and the inferior and superior poles of the patella. The physician noted painful and limited knee range of motion and activities of daily living. The Veteran was afforded a VA examination in May 2012. Regarding his knees, the examiner noted diagnosis of bilateral patellofemoral syndrome and bilateral degenerative joint disease, mild with meniscal tear. His functional limitation was mild. The Veteran reported constant pain and instability. He wears a knee brace. Range of motion was from 0 to 100 degrees on the right knee and 0 to 90 degrees on the left knee, with objective evidence of pain at the end of both ranges. The Veteran was able to perform repetitive use testing with no additional limitations. The examiner noted tenderness or pal to palpation for the joint line. Muscle strength testing and joint stability testing were normal and there was no evidence of recurrent patellar subluxation or dislocation. The examiner did note other tibial and/or fibular impairment but did not indicate the relevant condition. The Veteran had bilateral meniscal tears. The examiner opined that the Veteran's bilateral degenerative joint disease with medial meniscal tear was like likely than not caused by service or his patellofemoral syndrome. In an October 2012 treatment record, it was noted that the Veteran was 6 weeks post left knee arthroscopy, partial medial meniscectomy. A physical examination showed his range of motion was from 5 to 120 degrees with minimal pain. An August 2015 treatment record showed crepitation in both knees. The Veteran appeared at a Board hearing in October 2013. The Veteran testified that he has pain in his left knee and has difficulty with stairs, standing, and putting weight on it. He stated that he was prescribed a cane by the VA. The Veteran underwent a VA examination for his knees in April 2016. The examiner noted diagnoses of bilateral meniscal tears, bilateral osteoarthritis, and bilateral patellofemoral pain syndrome. The Veteran reported being unable to put weight on his left knee. Right knee range of motion was from 0 to 140 degrees with no evidence of pain. Left knee range of motion was from 0 to 130 degrees with pain and functional loss noted on examination. The examiner noted that the Veteran did not have additional limitations after repetitive movement and that his description of pain was more consistent with chronic pain than flare-ups. Muscle strength testing was normal with no atrophy and stability testing was normal with no history of recurrent effusions. The examiner noted no additional tibial or fibular impairment. The Veteran had bilateral meniscal tears on 2011 with a left side meniscectomy in 2012. Radiographic examinations showed bilateral degenerative arthritis. The examiner opined that the Veteran's service-connected "bilateral patellofemoral syndrome did not cause or aggravate bilateral knee meniscal tear or bilateral OA. To opine on the degree that each diagnosis contributes to veteran's decreased ROM, would be mere speculation. Based on his [service-connected] conditions alone, as per VA requirement, the veteran is capable of sedentary to light or moderate duty activities if he so chooses." After a review of the record, the Board finds that the Veteran's bilateral knee disorders do not warrant higher ratings than those presently assigned. Regarding his left knee, prior to September 12, 2012, the evidence does not show entitlement to a rating in excess of 10 percent. His rating under Diagnostic Code 5299-5260 reflects painful motion with noncompensable limitation of motion. From November 1, 2012, the evidence does not show entitlement to a rating in excess of 20 percent. The 20 percent rating is for his osteoarthritis reflecting x-ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations. Similarly, with regard to the right knee, the Veteran is in receipt of a 10 percent rating under Diagnostic Code 5299-5260 reflecting painful motion with noncompensable limitation of motion. In order to warrant higher disability ratings of 20 percent under Diagnostic Code 5260, the evidence would have to demonstrate flexion limited to 30 degrees or more. Upon review, the Board finds that the evidence demonstrates that during the entire period on appeal, the Veteran's flexion was, at worst, limited to 90 degrees on the left and 100 degrees on the right. Therefore, a compensable rating based on limitation of flexion is not warranted. Similarly, the Veteran is not entitled to a compensable rating for limitation of extension. The Veteran was, at worst, limited to 5 degrees of extension bilaterally. To warrant a compensable rating, the Veteran's extension must be limited to 10 degrees or more. Therefore, an increased rating is not warranted under Diagnostic Code 5261 for limitation of extension. The evidence also shows that although the Veteran reported wearing a knee brace, the objective evidence shows that stability tests were consistently normal throughout the period on appeal. At no point did the evidence show objective evidence of instability, or subluxation. Therefore, he is not entitled to a separate compensable rating under Diagnostic Code 5257. The Board also finds that the Veteran has symptomatic meniscectomy on the left knee which would warrant a 10 percent rating under Diagnostic Code 5259. However, as the Veteran is already compensated at 10 and 20 percent for his symptoms of pain and limitation of function, assigning another 10 percent rating for the same symptoms would constitute pyramiding. See 38 C.F.R. § 4.14 (2017); VBA Manual, M21-1, III.iv.4.a.3.h. (2017). Regarding the right knee, the Board has considered whether a rating under Diagnostic Code 5258 is warranted. Diagnostic Code 5258 rates on the basis of dislocation of the semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. A 20 percent rating is the only rating available under that code. The record shows complaints of pain and locking of the right knee; however, there is no evidence of effusion. As the Diagnostic Code specifically requires evidence of frequent episodes of locking, pain, and effusion and the Veteran is already compensated for pain, the Board finds that the Veteran does not meet the criteria for a 20 percent rating pursuant to this Code. As there is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum, separate or higher ratings are not warranted under Diagnostic Codes 5256, 5262, or 5263. Based on this evidence, the Board finds that ratings in excess of those presently assigned are not warranted for the period on appeal. The Board has considered the Veteran's lay statements regarding his symptoms and finds him competent and credible. However, as discussed above, the Veteran's symptoms have been applied to the relevant rating criteria and the Board finds that they do not warrant ratings in excess of those currently assigned. Therefore, the Veteran's claims are denied. ORDER The claim of service connection for a low back disorder is dismissed. The claim for a TDIU prior to January 9, 2012 is dismissed. Entitlement to an increased evaluation for a left knee disorder (characterized as patellofemoral syndrome and osteoarthritis) in excess of 10 percent prior to September 11, 2012 and in excess of 20 percent from November 1, 2012 is denied. Entitlement to an increased evaluation in excess of 10 percent for patellofemoral syndrome of the right knee is denied. ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs