Citation Nr: 1756085 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 09-39 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an initial rating in excess of 10 percent for a right knee disability. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran and her son ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran had active service from September 1986 to September 1992, March 1993 to August 1993, and from November 1994 to February 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from A September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In May 2012 a rating decision assigned a 10 percent rating for the Veteran's right knee disability as of the October 30, 2007, grant of service connection. However, as that award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In March 2014, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In December 2016, the Veteran was notified that the VLJ who conducted her hearing was no longer with the Board. The Veteran was provided the opportunity to appear for another Board hearing, but no response was received. Pursuant to the letter, when no response is received within 30 days of the letter, the Board will assume no hearing is requested and proceed with adjudication. FINDINGS OF FACTS 1. The Veteran's right knee disability has been manifested by subjective complaints of pain and objective findings of extension limited at most to 10 degrees and flexion limited at most to 70 degrees. There is no evidence of ankylosis. 2. The Veteran's right knee disability is also manifested by symptoms analogous to a dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for limitation of flexion of the right knee are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 20 percent rating for dislocated semilunar cartilage have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.71a, DC 5258 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2016). Neither the Veteran nor her 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). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When rating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45. Under 38 C.F.R. § 4.45, consideration must be given to weakened movement, premature or excess fatigability and incoordination. The diagnostic codes pertaining to range of motion do not subsume those regulations, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on that basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. 38 C.F.R. §§ 4.40, 4.45 (2016); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is 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 (2017). Painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. Burton v. Shinseki, 25 Vet. App. 1 (2011). In the instant matter, the Veteran had been assigned a 10 percent evaluation under DC 5260 for her patellofemoral pain syndrome of the right knee since the October 20, 2007, grant of service connection. Under Diagnostic Code 5260, limitation of flexion to 60 degrees warrants a 0 percent rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. A 20 percent rating requires flexion limited to 30 degrees. A 30 percent rating requires flexion limited to 15 degrees. 38 C.F.R. § 4.71a (2017). Normal extension of the knee is to 0 degrees and normal flexion of the knee is to 140 degrees. 38 C.F.R. § 4.71a, Plate II.. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a (2017). Degenerative arthritis is rated under Diagnostic Code 5003, which states that the severity of degenerative arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion diagnostic code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. 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 warranted 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. Ratings under Diagnostic Code 5003 are not to be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). The Board observes that the words "slight," "moderate," "severe," and "pronounced" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2016). It should also be noted that use of terminology such as "slight" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2016). Factual Background In a December 2007 statement, the Veteran stated that her right knee began hurting and swelling while in-service. She reported that she had two prior arthroscopic surgeries on her right knee. She reported that her right knee was painful and swollen every day. In December 2007, the Veteran submitted several buddy/lay statements from her children and family indicating that she was unable to perform her activities of daily living due to pain in her joints, including her right knee. In September 2007 VA medical center (VAMC) primary care intake form the Veteran reported right knee pain and swelling on and off and that her knee felt unsteady. In a December 2007 VAMC rheumatology follow-up, the Veteran's knee examination was normal. In April 2008, a VAMC rheumatology note showed the Veteran to have pain in the knees. Upon examination, the Veteran's knees showed full range of motion and not synovitis. In August 2008, a VAMC rheumatology note indicated the Veteran's knees were tender to palpitation, but that the right knee had no effusion. A November 2008 VAMC emergency room note indicated the Veteran had presented with increasing joint pain. Her right knee was noted to be diffusely warm and tender. At a follow-up appointment with the VAMC rheumatology clinic, the Veteran reported increasing knee pain. Tenderness and swelling was noted on her lower extremities. In March 2009, a VAMC primary care note showed the Veteran to have pain and stiffness in her knees. In July 2009, a VAMC primary care note showed the Veteran to have pain and stiffness in her knees. In April 2010, the Veteran presented to a VAMC with complaints of knee pain, which was worse with cold weather. In March 2012 a VA examination of the Veteran's knees diagnosed her with chondromalacia patella status post surgery for plica. The Veteran reported developing traumatic bilateral knee pin in service and that she underwent two surgeries to her right knee, which did not help. She stated that she has persistent knee pain ever since service, which has worsened over time especially with weight bearing. The Veteran did not report flare-ups. Upon examination, the Veteran's right knee had flexion to 125 degrees with no objective evidence of painful motion. Her extension ended at 10 degrees with no objective evidence of painful motion. Her range of motion did not change after repetitive use testing with 3 repetitions. She was found to have function loss/impairment after repetitive use indicated by less movement than normal and weakened movement. She did have pain on palpitation and her right knee muscle strength testing, flexion, and extension were all 4 out of 5. She did not have evidence or history of recurrent patellar sublation or dislocation. She also did not have shin splints, tibial/fibular impairment, or a meniscal condition. The examiner found her to be limited from work requiring prolonged weight bearing, climbing, squatting, frequent bending, or lifting more than 15 pounds. In her July 2012 Form 9 Appeal to the Board of Veterans' Appeals, the Veteran stated that her VA examination occurred on a day when she was not experiencing her usual level of pain and stiffness. In September 2012, a VAMC admission note showed that the Veteran reported knee pain and having fallen or her right knee that week. In her March 2014 hearing testimony, the Veteran stated that she had locking and giving way of her knee. In July 2014, a VA examination of the Veteran's knees found her to have right knee patella dysfunction status post arthroscopic surgery times 2 with residual chondromalacia patella and degenerative joint disease. The Veteran reported a significant increase in knee symptoms about 2007 when she developed increased right knee pain with some instability of the knee - described locking sensation. She used a cane intermittently since 2002 and also used a walker when she had flares of weakness and pain and felt unsteady. She reported right knee with chronic daily pain and joint stiffness in the morning, but that in general the pain in the right knee worsened as the day went on with increased pain in the evenings and bedtime. She reported difficulty sleeping due to pain in the right knee but also other joints involved. She reported about once a month her bilateral knees got swollen with increased pain lasting about 3 days. She reported occasional right knee locking and reported her leg sometimes gave way, but she could not distinguish if it was due to the knee or fatigue and weakness in the leg. The Veteran stated she could walk one block before needing to stop to rest, that she could stand 5 minutes, had difficulty walking on uneven surfaces, and could not go up or down more than a few stairs. She did report flare-ups of the right knee impacted her functional ability, describing her flare-ups as monthly swelling and increased pain. Upon examination, the Veteran's flexion was limited to 115 degrees, with evidence of painful motion beginning at that same degree. Her extension was to 0 degrees, with no evidence of painful motion. She was able to perform repetitive-use testing with 3 repetitions with no change in her post-repetition flexion or extension. She was found to have function loss and/or functional impairment of her knee, described as less movement than normal, pain on movement, swelling, and deformity. She did have pain to palpitation. Her muscle strength testing was normal, as were her joint stability tests. She was found to have moderate patellar subluxation. She did not have shin splints or meniscal conditions. Her right knee was noted to be larger than the left, with swelling, and that her gait leaned to the left without the use of an assistive device. She reported occasional use of a cane and walker. Degenerative arthritis of the right knee was noted on a July 2014 diagnostic test. The Veteran was noted to be unable to perform impact activities such as running and jumping. The examiner stated that the Veteran was expected to have increased right knee pain and decreased endurance for repetitive bending/squatting/pushing/pulling activities. She could walk one block, had difficulty walking on uneven surfaces and difficulty with repetitive stairs. A July 2014 VAMC X-ray of the Veteran's right knee indicated she had degenerative changes, including tricompartmental space narrowing and small osteophytes consistent with osteoarthritis. In September 2014, a VAMC rheumatology note showed that the Veteran had recurrent swelling of her right knee. She stated she was able to flex and extend her knee, but with discomfort. An October 2014 VAMC rheumatology note showed that the Veteran stated her right knee pain had resolved. In January 2015 a VAMC occupational therapy note indicated the Veteran's right knee had flexion and extension within functional limits. The Veteran reported normal sensation throughout her right knee and her strength was 5 out of 5. In an October 2015 VAMC rheumatology follow-up, indicated the Veteran had no effusion or warmth of her right knee. Upon examination, her right knee showed no evidence of inflammatory arthritis. She did have stiffness/pain, however, she did not have evidence of weakness or drop foot. In March 2016, a VAMC nursing note showed the Veteran to have pain of the right knee at 9 out of 10, with no history of recent falls. In April 2016, a VAMC hematology clinic note showed the Veteran to have pain in her right knee at 5 out of 10. She denied any recent falls. In July 2016, a VAMC rheumatology note indicated the Veteran was experiencing intermittent stiffness of the right knee. An August 2016 VAMC infectious disease follow up note indicated the Veteran had complaints of right knee pain, but that it had been ongoing for years and was unchanged. In September 2016, a VAMC rheumatology note, the Veteran's knees were noted to have crepitus, but no joint line tenderness, active swelling, tenderness, or synovitis. No knee pain was noted. A December 2016 VAMC infectious disease follow up showed the Veteran to have reported pain in her right knee for the past week. Upon examination, her right knee had no palpable effusion, swelling, or erythema. Pain with both passive and active manipulation. The knee was tender to palpation. In March 2017, a VA examination diagnosed the Veteran with degenerative arthritis in her right knee. The Veteran reported that the her knee hurt constantly, with her pain located under her patella. She reported that when she woke up in the morning, her knees felt better; however, as the day progressed, the pain got more painful. She reported her right knee would lock up with certain movements and that after getting in and out of the car more than three times, she will have increased discomfort in the knees. She also reported she was unable to walk for longer than 15-30 minutes, was unable to run or jump, or was unable to ambulate up or down any stairs. She stated that she would have to drag her right leg up at times when she had to use stairs. She reported difficulty getting out of a regular chair and that she used a bar-height chair at home because it is easier to get in and out of. She reported it took a lot of effort to get up from a sitting position. She did not report flare-ups, but did report functional impairment of the joint as stated above. Upon examination, her right knee had flexion to 70 degrees and extension to 0 degrees. She was found to be unable to run, jump, climb, drive, ambulate for longer than 15-30 minutes, and unable to go up or down stairs. Both flexion and extension caused pain on examination. There was pain on weight bearing, objective evidence of pain upon palpitation and localized tenderness, as moderate pain was elicited with palpation all over the knee. There was objective evidence of crepitus. There was no functional loss after three repetitions. Her right knee flexion muscle strength was 3 out of 5 and her extension muscle strength was 5 out of 5. There was no evidence of ankylosis. There was slight subluxation and no joint instability. No shin splints or meniscal conditions were found. She did not report use of any assistive devices. In May 2017, the Veteran submitted a statement wherein she described that she first felt her knee lock in 1988 and that since she has had many problems with her knee. Considering the foregoing, the Board finds that a rating of 10 percent for the Veteran's right knee disability is the highest rating warranted for consideration of any limitation of motion, even considering functional loss due to pain and other factors. 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, and as noted above, the Veteran's right knee has shown either normal range of motion or motion limited to the minimal compensable standard since her grant of service connection. Multiple times throughout her VAMC treatment the Veteran has had normal range of motion of her right knee - December 2007, April 2008, October 2014, and January 2015. Similarly, in her VA examinations, the Veteran's limitation of range of motion was at minimal levels, with flexion at noncompensable degrees in March 2012, July 2014, and March 2017. Additionally, the limitation of her extension evidenced in her March 2012 VA examination was not present in her July 2014 and March 2017 VA examinations. Furthermore, though there was pain on palpitation and on rest or non-motion, the Veteran's functional impact via difficulty in standing or walking for long periods of time and her limitations of use are not such to warrant more than the aforementioned minimum compensable rating. The Veteran also denied flare-ups of pain in her right knee in her 2012 and 2017 VA examinations and was able to perform repetitive testing without additional loss of function or range of motion in all three of her VA examinations. As such, a rating in excess of 10 percent is not warranted as the Veteran does not have symptoms which would support such a finding. Other than the Veteran's painful motion and use, there is no objective symptomology or limitation which would warrant a rating in excess of 10 percent since the grant of service connection. While the Board is aware of the Veteran's complaints of pain, stiffness, and weakness, those symptoms are not shown by competent, objective evidence to be so disabling as to warrant the next higher 20 percent rating for limitation of flexion or extension under DCs 5260 or 5261. In this case, there is no objective, quantifiable evidence of additional range of motion loss due to pain on use, as alleged by the Veteran, that would equate to functional limitation to the extent that a higher rating was warranted under Diagnostic Code 5260 and/or Diagnostic Code 5261. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40 ). With regard to whether the Veteran is entitled to a rating higher than 10 percent under DC 5003 for arthritis, the Board concludes that she is not. Under DC 5003, a 20 percent rating is not warranted unless X-ray evidence shows involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. The knee is considered a major joint. 38 C.F.R. § 4.45 (2017). Accordingly, the Board finds that the Veteran is not entitled to a rating greater than the current 10 percent rating under that diagnostic code. That remains the highest rating warranted even considering functional loss due to pain and other factors. 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds the March 2012, July 2014, and March 2017 VA examiners' medical opinions highly probative to the issue of the severity of the Veteran's right knee disability. Specifically, the examiners interviewed the Veteran and conducted a physical examination. Moreover, the examiners had the requisite medical expertise and had sufficient facts and data on which to base their conclusions. As such, the Board accords the VA examination opinions great probative weight. Additionally, the Board has considered the Court's recent holding in Sharp v. Shulkin, No. 16-1385 (Vet. App., Sept. 6, 2017), addressing 38 C.F.R. § 4.40. In this case, the Board finds the musculoskeletal examinations of record are 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. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners. She also specifically denied flare-ups in her March 2012 and March 2017 examinations. Here, in the July 2014 VA examination the Veteran endorsed experiencing flare-ups and the examiner elicited information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Additionally, the reports do not suggest that the findings on examination, in terms of ROM, 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. As such, further examination or opinion is unnecessary to decide the claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Board has also considered the statements submitted by the Veteran in support of the claim, specifically that her functional capacity is limited beyond what is set forth in her current rating criteria. The Board finds that the Veteran is a lay person and is competent to report observable symptoms she experiences through her senses - such pain and stiffness. Layno v. Brown, 6 Vet. App. 465 (1994). However, she is not competent to identify a specific level of disability according to the appropriate diagnostic codes. The identification of a knee disability and the determination of the range of motion of the knee require medical expertise that the Veteran has not shown she possesses. Determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the nature and extent of the Veteran's right knee disability has been provided by the medical personnel who have examined her and who have made pertinent clinical findings in conjunction with the examinations. The medical findings, as provided in the examination reports, directly address the criteria under which her disability is rated. The Board finds that evidence is the most persuasive and outweighs the Veteran's statements in support of her claim. In sum, the claims file does not contain competent and credible evidence that the Veteran's right knee warrants an initial rating in excess of 10 percent for limitation of motion. However, the Board does find that a separate rating is warranted under DC 5258, which contemplates cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint. The Veteran underwent a meniscectomy in 1989 and in 1992, and her knee has remained symptomatic since those surgeries. She has consistently complained of pain and the evidence of record reveals sufficient additional objective findings and symptoms of pain, weakened movement, and swelling which may be attributable, at least in part, to the documented surgical repairs of semilunar cartilage in the right knee, and are separate symptomatology from the limitation of motion for which the rating for her service connected right knee disability has been assigned. Pain is also shown due to effusion. Furthermore, the Veteran has consistently reported "locking" of her right knee - as stated in her March 2014 testimony, her July 2014 VA examination, her March 2017 VA examination, and her May 2017 statement, wherein she reported knee locking since 1988. Indeed, the majority of the symptoms reported by the Veteran, found upon examination, and which result in her reported functional limitations are contemplated under DC 5258 - pain, tenderness, swelling, locking, and stiffness. Thus, the Board finds that a separate rating pursuant to DC 5258 is warranted. The Board notes further that a 10 percent rating under DC 5259 is provided for a symptomatic knee after removal of the semilunar cartilage, and, thus, a separate 10 percent under that code in addition to the 20 percent assigned herein under DC 5258 would clearly constitute pyramiding. The language of DC 5259 is broad and covers any symptoms associated with the removal of the semilunar cartilage. Therefore, having awarded a 20 percent rating under DC 5258, the Board concludes that also assigning a separate disability rating under either DC 5259 would violate 38 C.F.R. § 4.14 and the rule against pyramiding. Esteban v. Brown, 6 Vet. App. 259 (1994). The Board also notes that a claimant who has arthritis or limitation of motion and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257. However, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (1998). In this matter, the Board notes that the Veteran is already separately service connected for the subluxation of her right knee pursuant to DC 5257. In addition, the Board has considered other potentially applicable diagnostic codes for rating the Veteran's service-connected knee disability. As the Veteran's knee disability did not result in ankylosis, impairment of the tibia and fibula, or genu recurvatum, DCs 5256, 5262, and 5263 are not for application. ORDER An initial rating in excess of 10 percent for a right knee disability is denied. A separate 20 percent rating for dislocated semilunar cartilage of the right knee is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs