Citation Nr: 1756092 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 10-34 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for right knee instability. 2. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Counsel INTRODUCTION The Veteran served on active duty from October 1982 to October 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal of from August 2009 and November 2009 rating decisions of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in December 2012. A transcript of the hearing is in the Veteran's file. In July 2014 and September 2016, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Of note, in February 2015, the RO issued a rating decision granting service connection for right knee limitation of flexion (characterized as right knee degenerative joint disease), and assigned a separate 10 percent disability rating. The Board found this matter to be part-and-parcel of the increased rating claim on appeal. FINDINGS OF FACT 1. The Veteran's service-connected right knee instability is not shown to be manifested by more than moderate instability. 2. The Veteran's service-connected degenerative joint disease of the right knee has been manifested by arthritis with painful motion; flexion limited to 30 degrees or less was not shown. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability rating in excess of 20 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 2. The criteria establishing entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003, 5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). The Veteran was provided VA medical examinations in June 2009, June 2011, August 2014, September 2016 and August 2017. The examinations are sufficient evidence for deciding the claims on appeal. The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disabilities in sufficient detail so that the Board's evaluations are fully informed ones, and contain reasoned explanations. Thus, VA's duty to assist has been met. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations include interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability; and resolving any reasonable doubt regarding the degree of disability in favor of the claimant. Where there is a question as to which of two evaluations apply, the higher of the two ratings is assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's instability of the right knee has been rated at 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5257, slight impairment warrants a 10 percent disability rating, moderate impairment warrants a 20 percent disability rating, and severe impairment warrants a 30 percent disability rating. In addition, the Veteran's service-connected right knee disability has a separate 10 percent disability rating under Diagnostic Code 5003-5260 for limitation of flexion. 38 C.F.R. § 4.71a. Diagnostic Code 5003 requires that degenerative arthritis be rated on the basis of limitation of motion of the specific joint or joints involved. Diagnostic Code 5003 further provides that, when the limitation of motion of the specific joint or joints involved is noncompensable, a rating of 10 percent is assigned for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion of the knee is rated under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension). Under Diagnostic Code 5260, flexion limited to 60 degrees is rated zero percent. The criterion for a 10 percent rating is flexion limited to 45 degrees. The criterion for the next higher rating, 20 percent, is flexion limited to 30 degrees. The criterion for the next higher rating, 30 percent, is flexion limited to 15 degrees. Under Diagnostic Code 5261, extension limited to 5 degrees is rated zero percent. The criterion for a 10 percent rating is extension limited to 10 degrees. The criterion for the next higher rating, 20 percent, is extension limited to 15 degrees. The criterion for the next higher rating, 30 percent, is extension limited to 20 degrees. A 40 percent rating is assigned with extension limited to 30 degrees. The highest 50 percent rating is assigned with extension limited to 45 degrees. Under 38 C.F.R. § 4.71a, there are other diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected knee disorders. Diagnostic Code 5258 provides a 20 percent evaluation for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 grants a 10 percent evaluation for removal of semilunar cartilage that is symptomatic. Additional rating criteria are found under Diagnostic Codes 5256 (ankylosis of the knee), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum acquired, traumatic, with weakness and insecurity in weight-bearing objectively). Normal knee motion is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. 38 C.F.R. § 4.71a. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The United States Court of Appeals for Veterans Claims (Court) has also issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Board has reviewed the Veteran's lay statements and all relevant medical evidence, with particular attention to the VA examinations from June 2009, June 2011, August 2014, September 2016 and August 2017. Given the evidence, the Board finds the 20 percent rating currently assigned to the Veteran's service-connected right knee instability under Diagnostic Code 5257 to be proper. The only possible basis for an increase to a 30 percent disability rating would be a showing of disability more nearly approximating "severe" recurrent subluxation or lateral instability impairment of the knee. The August 2014 VA examination report shows slight patellar subluxation and normal joint stability. The September 2016 VA examination report shows that knee instability and subluxation were not present, and the August 2017 VA examination report reflects that instability was not found. The Board notes that the DeLuca considerations are not applicable here, as Diagnostic Code 5257 is not predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Thus, the Board finds that a rating in excess of 20 percent for instability of the right knee is not warranted under Diagnostic Code 5257. Further, the Board finds the 10 percent rating currently assigned to the Veteran's service-connected degenerative joint disease of the right knee under Diagnostic Codes 5003-5260 to be proper. To assign a 20 percent rating for arthritis under Diagnostic Code 5003, it must be shown by x-ray evidence that there is involvement of two or more major joints with occasional incapacitating exacerbations; such is not shown in the record. The possible basis for an increase to a 20 percent rating, taking into account DeLuca factors, under Diagnostic Code 5260 would be a showing of limitation of flexion of the knee to 30 degrees. At no time during the course of the appeal has the Veteran's flexion been limited to 30 degrees. In this regard, at worst, right knee flexion was limited to 120 degrees, to include consideration of pain and repetitive motion testing as shown on the June 2009 and June 2011 VA examination reports. The August 2014, September 2016 and August 2017 VA examination reports reflected right knee flexion measurements as 125 degrees with pain, 125 degrees, and 135 degrees, respectively. Accordingly, a rating in excess of 10 percent is not warranted under Diagnostic Codes 5003-5260. The criteria for higher or separate rating under Diagnostic Code 5261, for limited extension have also not been met, as a compensable level of limitation of motion was not demonstrated on any VA examination. In compliance with Correia, the August 2017 VA examiner also determined that there was evidence of pain in the right knee with passive range of motion and with non-weight bearing. In addition, while the left knee did have patellofemoral arthropathy with joint space narrowing on the examination day, the Veteran's range of motion of the left knew was normal. The provisions of 38 C.F.R. § 4.59 recognize actually painful, unstable, or malaligned joints as entitled to at least the minimum compensable rating for a joint. Nothing in the record indicates the Veteran otherwise has or would have limitation of flexion to the extent necessary for a rating in excess of 10 percent, or a compensable rating based upon limitation of extension, to include during flare-ups of pain, in active or passive motion, weight or non-weight bearing. See Correia, supra. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. There is no objective evidence nor subjective indication of right knee ankylosis, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum on any of the VA examination reports. See Diagnostic Codes 5256, 5259, 5262, and 5263. Although the VA examination report dated in June 2009 shows subjective complaints of "locking", and the June 2011, August 2014 and August 2017 VA examination reports noted x-ray results of joint effusion, evidence of dislocated semilunar cartilage with frequent episodes of "locking" with pain and effusion into the joint has not been noted during the entire period on appeal. Accordingly, a separate or higher rating under Diagnostic Code 5258 is not warranted. III. Other Considerations In reaching this determination, the Board notes that the United States Court of Appeals for Veterans Claims has held that entitlement to a total disability rating based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised when a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. At the August 2017 VA examination, the Veteran noted that he currently worked as an HVAC supervisor for a company, which was essentially a sedentary job (which represented a change from his prior employment due to the right knee and lower back issues/problems). The VA examiner indicated that the Veteran's current right knee condition would limit his ability to perform repetitive climbing or squatting, as well as prolonged standing. As the Veteran, nor the evidence, suggests unemployability due to his right knee disability, the question of entitlement to TDIU is not raised. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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 20 percent for right knee instability is denied. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs