Citation Nr: 1754611	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  14-07 561	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to a rating in excess of 10 percent for right knee disability prior to October 18, 2016 based on limitation of motion. 

2. Entitlement to a rating in excess of 10 percent for right knee disability prior to October 18, 2016 and from December 1, 2017 based on instability.

3. Entitlement to a separate evaluation for right knee disability prior to October 18, 2016 based on locking of the knee and other manifestations of the semilunar cartilage.  

4. Entitlement to rating in excess of 30 percent for right knee disability from December 1, 2017.


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans Affairs


ATTORNEY FOR THE BOARD

S. An, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1987 to June 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

In June 2016 the Board remanded the case for additional evidentiary development.  Soon thereafter, in October 2016, the Veteran underwent a right knee replacement.  

By rating action of January 2017, the RO granted service connection for right total knee replacement arthroplasty and assigned a temporary evaluation of 100 percent effective from October 18, 2016; and assigned an evaluation of 30 percent rated based on severity of the residuals effective from December 1, 2017.  

In so doing, the RO recharacterized the Veteran's disability as right total knee replacement arthroplasty and discontinued rating the Veteran's disability under Diagnostic Code 5010-5260 for arthritis; and discontinued the assignment of a separate rating under Diagnostic Code 5257 for instability; and began rating the disability under Diagnostic Code 5055 effective from October 18, 2016.  

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system.

The issues of entitlement to an increased rating for right knee disability from December 1, 2017 and a separate rating based on instability from December 1, 2017 are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. For the period prior to October 18, 2016, the Veteran's right knee disability was not productive of actual or functional flexion limited to 30 degrees, actual or functional extension limited to 5 degrees, even with consideration of additional functional loss due to pain; ankylosis, impairment of the tibia and fibula, or genu recurvatum have not been demonstrated.

2. For the period prior to October 18, 2016, the Veteran's right knee disability was productive of no more than mild lateral instability or recurrent subluxation.  

3. For the period from October 26, 2015 through October 18, 2016, the Veteran's right knee disability of the semilunar cartilage was manifested by meniscal tear, with frequent episodes of locking, pain, and effusion into the joint.


CONCLUSIONS OF LAW

1. For the period prior to October 18, 2016, the criteria for a rating in excess of 10 percent for right knee disability based on limitation of motion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260, 5261(2017).

2. For the period prior to October 18, 2016, the criteria for a rating in excess of 10 percent for right knee based on instability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017).

3. For the period from October 26, 2015 through October 18, 2016, the criteria for a separate evaluation of 20 percent for right knee disability based on locking of the knee and other manifestations of the semilunar cartilage have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Neither the Veteran, nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The Veteran was also provided VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners provided the information necessary to rate the service-connected disabilities on appeal.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Further, a review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998).  Under these circumstances, the Board concludes that appellate review may proceed without prejudice to the Veteran.

II. Increased Ratings 

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

The primary concern for an increased rating for a service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

When determining the severity of musculoskeletal disabilities, which are at least partly-rated on the basis of range of motion, VA must also consider the extent the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated due to the extent of pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995), see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

Right Knee Disability 

The Veteran submitted a claim for increased compensation for his right knee disability on November 22, 2010.  

As noted above, the Veteran is currently assigned a temporary 100 percent evaluation following his total knee replacement in October 18, 2016, and rated under Diagnostic Code 5055, and assigned a 30 percent disabling based on residuals beginning December 1, 2017.  
Prior to a total right knee replacement surgery, the Veteran's degenerative joint disease of the right knee was rated as 10 percent disabling under Diagnostic Codes 5010, 5260 based on limited and painful motion due to arthritis.  Additionally, a separate 10 percent rating was assigned for instability of the right knee under Diagnostic Code 5257.  

According to the rating schedule, pursuant to Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. (The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30 ).  Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating.  Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262.  The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055.  

As the Veteran's temporary total evaluation period is still in effect, the Board's discussion below will cover only the period on appeal prior to the total knee replacement.

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved (here, Diagnostic Codes 5260 or 5261 for the knees).  If the limitation of motion is noncompensable, a rating of 10 percent 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003.  

Under Diagnostic Code 5257, a 10 percent disability rating is assigned for slight recurrent subluxation or lateral instability.  A 20 percent disability rating is warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

Diagnostic Code 5258 provides that a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258.

Under Diagnostic Code 5260, limitation of flexion of the leg at the knee is rated at 10 percent if limited to 45 degrees, at 20 percent if limited to 30 degrees, and at 30 percent, which is the maximum evaluation available, if limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.  

Under Diagnostic Code 5261, limitation of extension of the leg at the knee is rated at 0 percent if limited to 5 degrees, at 10 percent if limited to 10 degrees, 20 percent if limited to 15 degrees, at 30 percent if limited to 20 degrees, at 40 percent if limited to 30 degrees, and at 50 percent if extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.  

Normal range of knee motion is from 0 degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II.

In addition, VA regulations provide that "pyramiding," or evaluation of the same disability under various diagnoses, is to be avoided. 38 C.F.R. § 4.14.  VA has specifically found, however, that limitation of motion of the knee and instability of the knee are not duplicative or overlapping conditions, and that a claimant who has both arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97 (July 1997).  Separate ratings must be based on additional disability.

In the present case, a February 2012 VA examination report reflects the Veteran's reports of worsening right knee degenerative joint disease symptoms.  On range of motion testing, he demonstrated flexion to 110 degrees and extension to 0 degrees.  The examiner indicated less movement than normal and evidence of pain on movement.  Joint stability tests were found normal with no evidence of recurrent subluxation or lateral instability. The Veteran denied having any meniscal conditions or surgical procedures for a meniscal condition.  See Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) dated February 2012.

VA treatment records of October 2012 reflect an MRI of the right knee showed evidence of medial and lateral meniscal tears.  The Veteran underwent a right knee arthroscopic debridement of lateral meniscus on October 19, 2012. See Birmingham VAMC records.  

In January 2014, he presented for a VA examination for his left knee where he demonstrated flexion to 90 degrees and extension to 0 degrees with no objective evidence of pain.  No response was provided for range of motion for the right knee.  Joint stability tests were found normal with no evidence of recurrent subluxation or lateral instability.  The Veteran denied having any meniscal conditions or surgical procedures for a meniscal condition.  No other residual signs or symptoms due to arthroscopic or other knee surgery noted.  Regarding the right knee, the examiner commented there was no evidence of fracture or subluxation and no joint effusion found.  See Knee and Lower Leg Conditions DBQ dated January 2014.

At an October 2015 VA examination, the Veteran reported "daily severe right knee pain with intermittent locking".  He reported "occasional feeling of giving way" with complaints of mild to moderate laxity.  On range of motion testing, he demonstrated flexion to 90 degrees and extension 0 degrees.  Pain was noted on examination but was found not to cause or result in functional loss.  The Veteran reported having a history of slight lateral instability and recurrent effusion but denied recurrent subluxation.  Joint stability testing was performed with normal findings indicated.  The examiner indicated meniscus condition with meniscal tear with frequent episodes of joint "locking" and joint pain. See Knee and Lower Leg Conditions DBQ dated October 2015.

Based on the evidence discussed above, for the period prior to October 18, 2016, the Board finds that the criteria for a disability rating in excess of 10 percent for degenerative joint disease of the right knee based on limitation of motion have not been met.  At no point during this period has the Veteran been found to have limitation of flexion of the knee to 30 degrees, which is required for a 20 percent rating under Diagnostic Code 5260.  Even with consideration of additional functional loss due to pain, the Veteran demonstrated flexion limited to 90 degrees.  Thus, the Board finds that the Veteran is adequately compensated by the assigned 10 percent evaluation and a higher rating based on flexion, for the period prior to October 18, 2016, is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

The evidence also does not support a separate rating under Diagnostic Code 5261 as the Veteran has not shown at any time to have limitation of extension of the knees; thus, the application of Diagnostic Code 5261 is not for appropriate here.  

Likewise, evaluating the Veteran's right knee disability under Diagnostic Codes 5256, 5262 or 5263 is not for application as there is no evidence of ankylosis, tibia and fibula impairment, or genu recurvatum at any point during the appeal period.  
Diagnostic Code 5259 also does not apply as there is no evidence of removal of semilunar cartilage. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5259, 5262, 5263.

With respect to recurrent subluxation or lateral instability rated under Diagnostic Code 5257, the Board finds that the presently assigned 10 percent rating contemplates slight instability and a higher rating for the period prior to October 18, 2016 is not warranted.  There is no evidence of record indicating moderate lateral instability or recurrent subluxation of the right knee.  Taking into consideration the Veteran's subjective complaints of "occasional feeling of giving way" or feelings of instability, the 2015 VA examiner nonetheless found stable varus and valgus stress, negative Lachman test, and negative posterior drawer test.  Moreover, at no point during this period were there any objective medical findings of moderate instability or abnormal laxity.  As such, the Board finds that the Veteran is adequately compensated by the assigned 10 percent evaluation for instability and a higher rating is not warranted for the period prior to October 18, 2016.  38 C.F.R. § 4.71a, Diagnostic Code 5257.

However, the Board finds that a separate rating under Diagnostic Code 5258 is warranted based on medical findings of a semilunar cartilage condition with meniscal tear, frequent episodes of "locking," pain, and effusion into the joint as reflected in the October 2015 VA examination report.  

Indeed, the Board is aware of the 2012 MRI report that shows the Veteran had a torn meniscus for which he underwent a procedure of right knee arthroscopic debridement in October 2012.  But, the probative contemporaneous medical records reveal no evidence of "dislocated" cartilage with frequent episodes of locking in 2012 to warrant a separate disability rating under Diagnostic Code 5258.  Moreover, the Veteran's symptomatology was already adequately contemplated by the temporary 100 percent evaluation he received for the period of convalescence based on his surgery in October 18, 2012. See Rating Decision of November 2013; 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260.  Notably, at his VA examination in January 2014, the Veteran denied having any meniscal conditions and the examiner found no other residual signs or symptoms due to arthroscopic debridement.      

In that regard, the Board observes that the Veteran's semilunar cartilage condition with meniscal tear, frequent episodes of locking, and severe pain more nearly approximated during the period of October 26, 2015.  Further, the Board is mindful of pyramiding and concludes that the Veteran's meniscus condition and symptoms thereof are not duplicative or overlapping of symptomatology rated based on lateral instability and limited motion.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  As such, a separate rating under Diagnostic Code 5258 has been demonstrated for the period from October 26, 2015 to October 18, 2016.   

Lastly, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  However, increased ratings for right knee disability are not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms were supported by pathology consistent with the 10 percent rating assigned for the period prior to October 18, 2016.  The Board observes that the Veteran's complaints of pain and limitations due to pain, and reports thereof, are adequately contemplated in the presently assigned ratings.  The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation.  Specifically, even when considering the effect of the Veteran's pain and other functional loss, he still demonstrated range of motion following repetitive use of flexion to well in excess of the degree required for a higher rating.

Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for increased rating for right knee disability under Diagnostic Code 5010-5260 based on limited motion and Diagnostic Code 5257 based on instability, for the period prior to October 18, 2016.  The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 

But, in resolving any doubt in favor of the Veteran, the Board finds the criteria for the assignment of a 20 percent rating under Diagnostic Code 5258 have been more nearly approximated during the period of October 26, 2015 through October 18, 2016.  38 C.F.R. § 4.71a, Diagnostic Code 5258.


ORDER

For the period prior to October 18, 2016, a rating in excess of 10 percent right knee disability based on limitation of motion is denied. 

For the period prior to October 18, 2016, a rating in excess of 10 percent right knee disability based on instability is denied. 

For the period from October 26, 2015 through October 18, 2016, a separate evaluation of 20 percent for right knee disability based on locking of the knee and other manifestations of the semilunar cartilage is granted. 


REMAND

As noted above, the Veteran is currently in receipt of a temporary total evaluation assigned under Diagnostic Code 5055 effective from October 18, 2016, the date of the right knee total replacement surgery.  Beginning December 1, 2017, the Veteran's right knee disability will then be assigned a 30 percent rating and evaluated based on severity of the residuals. See Rating Decision of January 2017.  

The Board observes that the Veteran's right knee disability is rated appropriately under Diagnostic Code 5055 rather than Diagnostic Code 5010-5260 based on limited and painful motion due to arthritis as this code contemplates "intermediate degrees of residual weakness, pain, or limitation of motion".  Moreover, Diagnostic Code 5055 provides the Veteran a minimum rating of 30 percent beginning December 1, 2017, which is also the highest available rating that he would receive for a knee disability if evaluated under Diagnostic Code 5260 for limited flexion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5010-5260.  

However, it appears that in granting a temporary total evaluation for the Veteran's right knee replacement and discontinuing the rating for arthritis and limited motion, the separate assignment for instability under Diagnostic Code 5257 has also been discontinued.  The RO has not informed the Veteran nor formally addressed the issue in a rating decision as to why the assignment to a separate rating for instability in combination with a rating under Diagnostic Code 5055 was discontinued going forward from December 1, 2017.  See Supplemental Statement of the Case dated January 2016 and February 2017. 

Rather than refer this issue to the RO for appropriate action, the Board finds that the correct remedy here is to remand as the issue of instability of the knee is inextricably intertwined with the underlying increased rating claim herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).
 
Further, given that the increased rating claim must be addressed once the Veteran completes the temporary total evaluation period; the Board finds that remand is necessary to afford the Veteran a VA examination to ascertain the current severity of his right knee disability (status post right total knee replacement arthroplasty).  

Accordingly, the case is REMANDED for the following action:

1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment.  

2. Upon completion of the Veteran's temporary total evaluation period, provide the Veteran with an appropriate examination to determine the present severity of his right knee disability.  

The entire claims file should be made available to and be reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  The examiner must comment on the severity of the right knee disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant DBQ.

3. After completing the above action and any additional development deemed appropriate, the AOJ should readjudicate the claims for increased ratings for right knee disability.  

In particular, adjudicate the inextricably intertwined issue of the assignment of a separate 10 percent disability rating for instability of the right knee in combination with a rating under Diagnostic Code 5055 beginning December 1, 2017 onward following appropriate notice to the Veteran in this regard.

4. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
KELLI A. KORDICH
 Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs