Citation Nr: 1753836 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 12-29 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability rating for status post right medial meniscectomy, currently rated as 10 percent disabling. 2. Entitlement to an increased disability rating for right knee osteoarthritis, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and R. M. ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from January 1980 to January 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously remanded by the Board in July 2015 and May 2017. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In November 2015, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In May 2017, the Board remanded the claim of entitlement to service connection for a left knee disability, to include as secondary to the service-connected right knee disabilities for additional development. A September 2017 rating decision granted entitlement to service connection for left knee osteoarthritis. As this represents a total grant of the benefit sought on appeal with respect to this issue, it is no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disabilities at issue render him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. FINDINGS OF FACT 1. Throughout the entire rating period, the Veteran's service-connected status post right medial meniscectomy has been manifested by slight recurrent subluxation or lateral instability. 2. Throughout the entire rating period, the Veteran's service-connected right knee osteoarthritis has been manifested by painful motion that, at its most severe, was limited to 90 degrees of flexion and 0 degrees of extension. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for status post right medial meniscectomy have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5257 (2017). 2. The criteria for a disability rating in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Right Knee Ratings The Veteran seeks higher disability ratings for his service-connected right knee disabilities. The Veteran's claim for an increased rating was received on January 29, 2010. Therefore, the relevant rating period is from January 30, 2009, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400 (o) (2). Throughout the rating period, the Veteran's service-connected right knee disabilities have been rated as 10 percent disabling based on recurrent subluxation or lateral instability under Diagnostic Code 5257 and 10 percent disabling based on degenerative arthritis with limited range of motion under Diagnostic Code 5003. The Veteran's service-connected right knee disability may be rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5260, and 5261. Diagnostic Code 5003 specifies 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 or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. If the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For purposes of rating disability from arthritis, VA regulations consider the knee to be a major joint. 38 C.F.R. § 4.45(f). Furthermore, under DC 5003, a 20 percent rating is warranted where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257 a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is warranted for knee flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is warranted for knee 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. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Separate ratings may be awarded under DCs 5257, 5260, and 5261. See VAOPGCPREC 9-2004. In addition, even if a veteran did not have limitation of motion of the knee meeting the criteria for a compensable rating under DC 5260 or 5261, a separate rating could be assigned if there was evidence of full range of motion "inhibited by pain." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Turning to the relevant evidence of record, the VA treatment records show that the Veteran has consistently reported right knee pain. The Veteran was provided an x-ray of his right knee in August 2010. The x-rays revealed degenerative osteoarthritis. No fractures, dislocation or joint effusion were noted. There was no significant soft tissue swelling or interval change. The Veteran reported that he had difficulty squatting and kneeling. The Veteran was provided a VA examination in June 2009. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran stated he has right knee flare-ups every three to four months that last one to two days. He further stated that squatting, kneeling and walking long distances increases right knee pain. The Veteran stated he was able to stand for up to an hour and walk one to three miles. The VA examiner noted that the Veteran's right knee had episodes of dislocation or subluxation one to two times per year. There was no ankylosis. Upon examination, the Veteran had right knee flexion to 100 degrees and extension to 0 degrees. There was evidence of pain following repetitive motion with no additional limitations after three repetitions of range-of-motion. The Veteran was provided a second VA examination in September 2010. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported he underwent medial compartment right open meniscectomy in 1982 and that he continues to have pain. The Veteran stated he has moderate flare-ups of the right knee weekly that last one to two days, which are caused by driving, standing for extended periods and walking. The Veteran did not report any episodes of dislocation or subluxation. Upon examination, the Veteran's gait was normal; there was no instability or ankylosis. The Veteran's flexion was to 110 degrees and extension to 0 degrees with evidence of pain with active motion. The Veteran was able to perform three repetitions without additional limitations. The Veteran was provided another VA examination in June 2017. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported that his service-connected right knee causes him problems. He further stated that he has flare-ups approximately once a week that last for a day and require him to stay off his feet. The Veteran further reported that he is unable to kneel or squat and cannot stand in one place for more than fifteen minutes. Upon examination the Veteran's right knee flexion was to 90 degrees and extension was to 0 degrees. The VA examiner noted that pain in the right knee causes functional loss on flexion and extension. Additionally, there was pain on weight bearing and evidence of crepitus. The Veteran was able to perform repetitive use testing without additional functional loss or range-of-motion after three repetitions. The Veteran did not have ankylosis. Joint stability testing was normal of anterior, posterior, medial and lateral instability. The VA examiner stated that passive range-of-motion and noweight-bearing range of motion were unchanged from active and weight-bearing range-of-motion on repetitive testing with no pain, fatigue, weakness, or incoordination. In view of the relevant evidence of record, the Board finds that, for the period prior to January 29, 2010, the Veteran was not entitled to a disability rating in excess of 10 percent under Diagnostic Codes 5003 because the service-connected right knee disability was not manifested in involvement of two or more major joints with occasional incapacitating exacerbations. In addition, the record shows that, during the period prior to January 29, 2010, the service-connected right knee disability was manifested by limited, painful motion that was noncompensable under Diagnostic Codes 5260 and 5261. Such limitation entitles the Veteran to a disability rating of 10 percent, and no higher, under Diagnostic Code 5003. The Veteran was also not shown to be entitled to a disability rating in excess of 10 percent under Diagnostic Code 5257. The record shows that prior to January 29, 2010, the Veteran's right knee had episodes of dislocation or subluxation one to two times per year. As such, prior to January 29, 2010, the Veteran's service-connected right knee disability manifested in slight recurrent subluxation or lateral instability. For the period from January 29, 2010, the Veteran has not been entitled to a disability rating in excess of 10 percent under Diagnostic Code 5003 because the service-connected right knee disability has not been manifested in involvement of two or more major joints with occasional incapacitating exacerbations. In this case, the record does not demonstrate occasional incapacitating exacerbations of the right knee. Rather, the record shows, during the period from January 29, 2010, the Veteran has been independent in his activities of daily living, and he has not required hospitalization and has not been prescribed bed rest due to the service-connected right knee disability. In addition, the record shows that, during the period from January 29, 2010, the service-connected right knee disability was manifested by limited, painful motion that was noncompensable under Diagnostic Codes 5260 and 5261. Such limitation entitles the Veteran to a disability rating of 10 percent, and no higher, under Diagnostic Code 5003. The Board also finds that the Veteran is not entitled to a disability rating in excess of 10 percent under Diagnostic Code 5257. From January 29, 2010, the Veteran's right knee disability has been rated as 10 percent disabling under Diagnostic Code 5257. To warrant a higher rating under that diagnostic code, the Veteran's service-connected right knee disability would have to manifest in moderate recurrent subluxation or lateral instability. However, the record does not show such manifestations during the rating period. At the September 2010 and June 2017 VA examinations the Veteran did not demonstrate right knee instability. Accordingly, the record does not show that the Veteran was entitled to a rating in excess of 10 percent under Diagnostic Code 5257 at any time from January 29, 2010. The Board further finds that the Veteran is not entitled to a disability rating in excess of 10 percent under Diagnostic Code 5260 at any time during the rating period because his service-connected right knee disability has not manifested by flexion limited to 30 degrees or less at any time during the rating period. Rather, the disability has manifested throughout the rating period by painful motion that was, at its most severe, limited to 90 degrees. Such limitation entitles the Veteran to a disability rating of 10 percent under Diagnostic 5003, and does not entitle him to a compensable rating under Diagnostic Code 5260. The Board additionally finds that, the Veteran is not entitled to a higher or additional rating under Diagnostic Code 5261 based on limited extension because his service-connected right knee disability has not manifested by extension limited to 15 degrees or more. Rather, at all times, the Veteran had right knee extension that was to 0 degrees. Such limitation does not entitle the Veteran to a compensable rating under Diagnostic Code 5261. The Board has considered whether the Veteran is entitled to a higher or separate rating under the other diagnostic codes relating to disabilities of the knees and legs. There is no indication of ankylosis of the right knee, dislocation or removal of the semilunar cartilage, nonunion of the tibia and fibula, or genu recurvatum. Therefore, no higher or additional rating is warranted under those diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263. The Board has further considered whether the Veteran is entitled to a higher rating based on additional functional loss or impairment under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca v. Brown, 8 Vet. App. 202, 205 (1995); Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran reported flare-ups in pain at each of the VA examinations. However, the Veteran did not indicate that the flare-ups in pain lead to additional functional loss. Thus, the record does not show that the Veteran is additionally limited by flare-ups of pain, fatigability, incoordination, pain on movement, or weakness such that higher ratings were warranted at any time during the rating period. The Board finds that the Veteran's pain and any functional loss are encompassed by the disability ratings provided herein, and that higher or additional ratings were not warranted at any time during the rating period. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. Additionally, the Board has considered the Court's recent holding in Sharp v. Shulkin, No. 16-1385, 2017 LEXIS 1266 at 11-15 (Vet. App., Sept. 6, 2017), addressing 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." In this regard, the Court concluded that, when a VA examiner is asked to provide an opinion as to additional functional loss during flare-ups of a musculoskeletal disability, the examiner must obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. The Court further concluded that, if the examination was not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range-of-motion that may be present during a flare-up. Additionally, if the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that he or she has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. In this case, the Board finds the June 2017 VA examination is adequate for rating purposes and that a higher disability rating is not warranted based on limitation of motion, even when considering the functional effects of pain, to include during flare-ups and after repetitive use. The June 2017 VA examiner elicited information regarding frequency, duration, characteristics and severity related to the Veteran's reported flare-ups. The June 2017 VA examiner did not provide information regarding the additional loss of range-of-motion that may be present during the Veteran's reported flare-ups; the VA examiner stated that "it would be only with resort to mere speculation to report the additional ROM limitation due to pain during a flare at that time." However, the VA examiner interviewed the Veteran and provided an in-person examination. When asked to describe his flare-ups, the Veteran did not assert additionally limited range-of-motion. Additionally, the VA examinations do not suggest that the findings on examination, in terms of range-of-motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record, to include the Veteran's lay statements. The Board acknowledges the Veteran's contentions that he is entitled to higher ratings for the service-connected right knee disabilities. The Veteran is competent to report symptoms such as pain, limited motion and instability. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is also credible in his belief that he is entitled to higher ratings. However, the Veteran is not competent to offer a medical opinion, for example, as to the relative severity of his service-connected right knee disability as applied to the applicable schedular rating criteria, as doing so requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). Therefore, in assigning a disability rating, the Board relies upon the competent, probative opinions provided by the medical professionals and on the objective medical evidence of record. The medical professionals' opinions are probative because the professionals have the knowledge and expertise necessary to rate disabilities of the musculoskeletal system, and because they are based on a review of the record, and on an in-person examination of the Veteran. They are thorough and provide enough detail to rate the Veteran under the relevant rating criteria. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (the thoroughness and detail of a medical opinion is a factor in assessing the probative value of the opinion). When considered in conjunction with the relevant rating criteria, the preponderance of the evidence is against a finding that ratings higher than or in addition to those assigned herein are warranted for the service-connected right knee disabilities. In summary, the record does not show that the Veteran was entitled to a rating in excess of 10 percent at any time during the appeal period for status post right medial meniscectomy. In addition, the record does not show that the Veteran was entitled to a rating in excess of 10 percent at any time during the appeal period for right knee osteoarthritis. To the extent that the Veteran seeks ratings for the service-connected right knee disability higher than or in addition to those provided herein, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to a disability rating in excess of 10 percent for status post right medial meniscectomy is denied. Entitlement to a disability rating in excess of 10 percent for right knee osteoarthritis is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs