Citation Nr: 1754028 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 07-30 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals, medial meniscus tear, left knee, for the period prior to November 3, 2008. 2. Entitlement to a rating in excess of 30 percent for status post total left knee replacement for the period from January 1, 2010. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from July 1977 to August 1979. These matters come before the Board of Veterans' Appeals (Board) from February 2006 and June 2009 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Pittsburgh, Pennsylvania. These matters were previously before the Board in June 2011, January 2012, October 2013, June 2014, and December 2015 and were remanded for further development. They have now returned to the Board for further appellate consideration. The Board finds that there has been substantial compliance with the directives of its remands. FINDINGS OF FACT 1. During the rating period on appeal prior to June 11, 2007, the Veteran's left knee disability has been manifested by reports of pain, instability, and limitation of motion; objectively, he has had left knee flexion to more than 60 degrees and extension limited to 5 degrees or less without clinical findings of recurrent subluxation or lateral instability, or locking, but with fluid on the knee. 2. On June 11, 2007, the Veteran had a left knee hemi-replacement of the medial compartment. 3. From August 1, 2008, to November 2, 2008, Veteran's left knee replacement has been manifested by complaints of pain, swelling and intermittent instability with range of motion from 5 degrees to 90 degrees; however, the credible competent evidence does not support a finding of chronic residuals of severe painful motion or weakness. 4. On November 3, 2008, the Veteran had a total left knee replacement. 5. From January 1, 2010, the Veteran's left knee replacement has been manifested by complaints of pain; however, the credible competent evidence does not support a finding of chronic residuals of severe painful motion or weakness. CONCLUSIONS OF LAW 1. The criteria for a separate 10 percent rating for the left knee have been met for symptomatic residuals of meniscectomy from August 31, 2005 (the date he filed his claim for an increased rating) to June 10, 2007 (the day prior to his left knee partial replacement); otherwise, a higher rating is not warranted for this period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.71a Diagnostic Code 5259. 2. The criteria for a rating of 100 percent based on surgical treatment necessitating convalescence are met from June 11, 2007 to July 31, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.30, 4.71a Diagnostic Code 5055 (2017). 3. The criteria for a rating of 100 percent for the Veteran's left knee status post partial hemi-replacement of medial compartment are met from August 1, 2007 to July 31, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.71a Diagnostic Code 5055 (2017). 4. The criteria for a rating of 30 percent, but no higher, for status post partial left knee replacement for the period from August 1, 2008, to November 2, 2008, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.71a Diagnostic Code 5055. 5. The criteria for a rating in excess of 30 percent for status post total left knee replacement for the period from January 1, 2010 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.71a Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA attempted to obtain an examination for the Veteran in June 2016 and again in February 2017; however, he was admitted for hospitalization at the times. (The Veteran also failed to report for VA examinations in November 2013 and February 2014). The Veteran was requested, in March 2017, to notify VA as to when he would be available for a VA examination; however, the mail was returned as "Veteran does not live here". Attempts to contact the Veteran to reschedule the Veteran were fruitless. (See March 2017 and two May 2017 VA Forms 27-0820). The Veteran's accredited representative is aware that the Veteran has not reported for examinations and that the VA attempts to contact the Veteran have been futile; the representative has not provided VA with a manner in which to contact the Veteran. The Veteran's claim has now been pending for more than a decade. The duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Moreover, it is well established that it is the Veteran's responsibility to keep VA advised of his whereabouts. "There is no burden on the part of the VA to turn up heaven and earth to find him." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). For these reasons, VA does not have a further duty to assist the Veteran in substantiating his claims. Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, 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 applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating the Knee For rating purposes, normal range of motion in a knee joint is from 0 degrees (extension) to 140 degrees (flexion). 38 C.F.R. § 4.71, Plate II. The Board acknowledges VAOPGCPREC 9 - 2004 (Sept. 17, 2004), where it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. As such, if the evidence of record reflects compensable loss of both flexion and extension of either leg, the Veteran would be entitled to the combined evaluation under Diagnostic Codes 5260 and 5261, per the combined ratings table in 38 C.F.R. § 4.25. Under DC 5258, cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint, is rated as 20 percent. Under Diagnostic Code 5259, removal of semilunar cartilage that is symptomatic will be assigned a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under DC 5257, other impairment of the knee, such as recurrent subluxation or lateral instability, is rated as 10 percent when slight, 20 percent when moderate and 30 percent when severe. See 38 C.F.R. § 4.71a, DC 5257. The terms "slight," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just" as contemplated by the requirements of the law. 38 C.F.R. § 4.6. In evaluating disabilities rated on the basis of limitation of motion, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Rating prior to June 11, 2007 The Veteran's left knee residuals of a medial meniscus tear are rated as 10 percent disabling under Diagnostic Code (DC) 5010-5260 prior to November 3, 2008. On August 31, 2005, the Veteran filed a claim for an increased rating; however, he did not indicate any specific symptoms. Historically, the Veteran had a meniscal tear in service which was treated conservatively with no surgery (See May 2009 VA examination report). The Board finds that a separate rating under DC 5261 is not warranted as the competent credible evidence is against a finding that extension is limited to ten degrees or greater (See October 2005 VA record noting full range of motion and full weight bearing without assistance, and October 2008 VA record noting extension is limited to five degrees.) Likewise, a rating in excess of 10 percent is not warranted under DC 5260 because the Veteran did not have flexion limited to 30 degrees or less (See October 2005 VA record, noting full range of motion, and March 4, 2006 Pittsburgh Mercy Health record and October 2008 VA record noting 90 degrees of flexion). As the Veteran had motion of the knee, he did not have ankylosis, and thus, a rating is not warranted under DC 5256. In determining, the Veteran's overall functioning, the Board has considered the factors espoused in DeLuca v. Brown, 8 Vet. App. 202 (1995), the Veteran's reported symptoms, to include during flare-ups, and the clinical records. Pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id at 43; see 38 C.F.R. § 4.40. The Veteran's pain has not been shown by competent credible evidence to cause a limitation of motion or other functional loss which would warrant a higher rating. A rating under DC 5262 is not warranted because the evidence reflects that the Veteran does not have nonunion or malunion of the tibia and fibula with moderate or marked disability of the knee. A separate rating under DC 5263 is not warranted because the Veteran does not have genu recurvatum. The Board has considered whether a rating is warranted under DC 5257 for recurrent subluxation or lateral instability. Prior the Veteran's disability was originally rated under DC 5257 and evaluated as noncompensable. In 2004, the diagnostic code was changed to DC 5010-5260 based on "x-ray evidence of arthritis, and painful motion." (See March 2004 Statement of the Case). There is insufficient competent credible evidence that the Veteran had recurrent subluxation or lateral instability of the knee. There is no clinical assessment of recurrent subluxation or lateral instability in the record. Although the Veteran has reported that his knee gave out on him in March 2006, his statements regarding his knee impairment, including instability, are not credible as they are inconsistent with assessments by VA and non-VA examiners. When examined in March 2006, the Veteran stated that he was minimally able to walk on his knee; however, he "was seen to walk to and from triage and walked into the emergency department." The examiner found that the injury to the knee "appeared to be slight in nature. It was noted that it was a "benign" examination other than pain on passive range of motion. The Board notes the Veteran has also reported that he has body parts which are paralyzed although he has been noted to move them; thus, his assessment of his extremities is not credible. A May 2006 PA Bureau of Disability Determinations record which reflects that the Veteran reported numbness of the left knee all the way up to the shoulder and hand (which he claimed was paralyzed although he could move it.) Upon examination, he walked on his heels and toes with minimal difficulty. He could squat with no difficulty. He had "good extension and flexion" of the knees. Although, the diagnostic code does not specifically note that "objective" instability must be found, the Board gives greater probative weight to the clinical testing, which is performed by a trained clinician, than to the Veteran's lay statements, which have been found to lack credibility. In addition, as noted below, the Veteran has been found to exaggerate his symptoms with regard to other conditions. In sum, the Veteran has exaggerated or misstated his physical limitations; thus, the Board finds that clinical testing results of subluxation or instability, which the claims file does not include, would be necessary to warrant a rating under DC 5257. The Board has also considered DC 5258 but finds that a rating under such is not warranted as the evidence does not reflect frequent episodes of locking. Although the Veteran has reported pain and although a December 2007 VA radiology record reflects that there "might be significant joint effusion", there is no competent credible evidence of locking. Finally, the Board has considered DC 5259 and finds that a separate 10 percent rating is warranted from August 31, 2005 (the date on which VA received the claim for an increase) to June 11, 2007 (the date of a partial left knee hemi-replacement of the medial compartment). The Board notes that a rating under DC 5259 is warranted when there is symptomatic removal of semilunar cartilage. In the Veteran's situation, he did not have removal of semilunar cartilage prior to June 2007 (See May 1979 STRs, and VA examination reports in November 1979, September 2003, and May 2009.) However, he did have fluid on the knee. Although "effusion in the joint" was not noted in the clinical records, an October 2005 VA record reflects that the Veteran had pain in the left knee and that "fluid" was present. The Board finds that the Veteran's torn meniscus with fluid but no locking should be compensated under DC 5259 by way of analogy and in consideration of VA's "veteran-friendly" stance. Rating from June 11, 2007 to July 31, 2008 The Board also finds that the Veteran is entitled to a 100 percent rating under DC 5055 for a knee replacement from June 11, 2007. In Hudgens v. McDonald, 823 F. 3d. 630 (2016), the U. S. Court of Appeals for the Federal Circuit held that DC 5055 may apply to partial knee replacements, and suggested that whether or not it applies to a partial replacement is a factual determination dependent on the specifics of an individual case. Given that the Veteran had a partial knee replacement in June 2007 which did not resolve his complaints and which necessitated a full knee replacement in November 2008, the Board finds that the Veteran should be awarded a 100 percent rating under DC 5055 from June 11, 2007. The Veteran was discharged from UPMC South Side following his surgery on June 13, 2007. DC 5055 provides for a 1-month total rating under 38 C.F.R. § 4.30, with the 100 percent rating for a 1-year period following thereafter. Accordingly, the 1 year period began August 1, 2007 and ended on July 31, 2008. From August 1, 2008 to November 2, 2008 For the period from August 1, 2008, until November 2, 2008, the Board finds a rating of 30 percent is warranted for residual weakness, pain and limitation of motion. An October 2008 VA treatment record noted "no change in location or characteristics of left knee pain, still intermittently swells." He reported no acute lower extremity weakness and that the left knee intermittently gives out. Knee extension was limited to 5 degrees and flexion to 90 degrees with + crepitus. Left lower extremity strength was 5- due to pain. The left knee was tender with slight edema. The Veteran would be entitled to a higher rating if he had more severe, or chronic residuals consisting of severe painful motion or weakness in the affected extremity. The competent credible evidence of record does not support a finding that the Veteran is entitled to a rating in excess of 30 percent prior to November 3, 2008. From November 3, 2008 to January 1, 2010 Beginning November 3, 2008, the Veteran was assigned a 100 percent rating which continued to January 1, 2010. During that time, a May 2009 VA examination report reflects that the Veteran reported weakness and pain which he described as a 7 out of 10 with daily flares to a 10 out of 10. There was no instability, giving way, or buckling. The Veteran had flexion from 10 degrees to 90 degrees. Range of motion did not result in additional weakness. The assessment was that the Veteran's MCL tear had resolved and that he had a "total knee replacement with residual chronic pain." This period is not on appeal, but the Board has considered the evidence because the history of the disability is for consideration and may be relevant to whether a higher rating is warranted beginning in January 2010. Rating from January 1, 2010 The Veteran's left knee is evaluated as 30 percent disabling from January 1, 2010 under DC 5055 for a knee replacement. The Veteran would be entitled to a higher rating if he had chronic residuals consisting of severe painful motion or weakness in the affected extremity. The competent credible evidence of record does not support a finding that the Veteran is entitled to a rating in excess of 30 percent. A June 2011 VA examination report reflects that the Veteran reported that he does not have flares or instability of the knee. He reported chronic pain for which he uses Motrin on an as needed basis (and has used heroin in the past). He used a cane sometimes. It was noted that the Veteran walked with antalgic gait, did not have significant effusion into the knee, had a stable knee, and had range of motion of 0 degrees extension to 110 degrees of flexion, which was noted by the examiner to be "excellent" for a total knee replacement. It was also found on examination that the Veteran had good strength without increase in pain, decrease in endurance, lack of coordination, or any change in degrees of motion with repetition, although the Veteran reported pain with flexion. The Board has considered the clinical records which note that the Veteran complained of pain at various levels. For example: 8 out of 10 (June 2011), 8.5 out of ten (August 2011), 9 out of ten (August 2011), 4 out of ten (June 2013), and that the Veteran has reported the pain as chronic and aching. The Board notes however, that the Veteran has continued to have a good range of motion and his range of motion was noted to be excellent in 2011 and full on examination in June 2013, when it was also noted that he had full weight-bearing without need for assistance. Moreover, a review of the clinical records reflects that the Veteran has been addicted to various substances and that he has been "known to exaggerate" his symptoms to "drive up" his CIWA (Clinical Institute Withdrawal Assessment for Alcohol) to obtain higher doses of Ativan, benzos, and Lorazepam (see July 2010, September 2013, November 2013 records). The Veteran's addiction and desire to drive up his CIWA to obtain medication casts doubt on the severity of his reported knee symptoms as well. The Board finds that there is insufficient competent credible evidence upon which to base a higher rating. Based on the evidence of record (the Veteran has failed to keep VA informed of a means to communicate with him so that more recent examinations may be obtained, and/or has failed to provide clinical records relevant to the rating period on appeal which would establish that a higher rating is warrant), his claim for a rating in excess of 30 percent for the period from January 1, 2010, must be denied. In rendering its decision, the Board has considered the benefit of the doubt rule. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER A separate 10 percent rating from August 31, 2005 to June 10, 2007, for left knee disability under DC 5259 is granted, subject to the laws and regulations governing the payment of monetary benefits; otherwise, a higher rating for this period is denied. A temporary evaluation of 100 percent is granted from June 11, 2007, to July 31, 2007, based on surgical treatment necessitating convalescence, subject to the laws and regulations governing the payment of monetary benefits. A rating of 100 percent for left knee disability under 5055 is granted from August 1, 2007, to July 31, 2008, subject to the laws and regulations governing the payment of monetary benefits. A rating of 30 percent is granted for residuals of left knee partial replacement from August 1, 2008, to November 2, 2008. A rating in excess of 30 percent for the period from January 1, 2010, is denied. ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs