Citation Nr: 1758061 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 14-10 818 ) 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 10 percent for right knee instability. 2. Entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the right knee. REPRESENTATION Appellant represented by: American Ex-Prisoners of War, Inc. WITNESSES AT HEARING ON APPEAL Veteran and S.P. ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from December 1986 to May 1987. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In July 2016, this appeal was remanded to the Agency of Original Jurisdiction for further development. Specifically, the appeal was remanded to afford the Veteran a new VA examination for his right knee condition. Following remand, the Veteran underwent a new VA examination for his right knee in September 2016. As the July 2016 remanded directives have been fulfilled, further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). FINDINGS OF FACT 1. Prior to September 21, 2016, the Veteran's right knee instability manifested as slight. 2. From September 21, 2016, the Veteran's right knee instability manifested as moderate. 3. The Veteran's right knee degenerative disc disease manifested in flexion and extension no less than 125 degrees and no additional functional loss except for painful motion; there was no total knee replacement, ankylosis, or recurrent effusion; the Veteran had a right knee meniscal condition but no removal of the meniscus. CONCLUSIONS OF LAW 1. Prior to September 21, 2016, the criteria for a disability rating in excess of 10 percent for the Veteran's right knee instability have not been met. 38 U.S.C. §§ 1155, 5107(b) (West 2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2017). 2. From September 21, 2016, the criteria for a disability rating of 20 percent for the Veteran's right knee instability have been met. 38 U.S.C. §§ 1155, 5107(b) (West 2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2017). 3. The criteria for a disability rating in excess of 10 percent for the Veteran's right knee degenerative disc disease with painful motion have not been met. 38 U.S.C. §§ 1155, 5107(b) (West 2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159. VA has complied with all duties necessary to notify the Veteran in substantiating the claims on appeal. The Board finds VA has satisfied its duty to assist the Veteran in the development of the claim as well. VA has obtained all identified and available service and post-service treatment records, and the VA examinations afforded the Veteran in September 2011 and September 2016 are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The examiners considered the Veteran's symptoms and history, performed appropriate testing, and addressed all relevant rating criteria. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 and that the Veteran will not be prejudiced as a result of the Board's adjudication of this claim. Increased Rating The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will also consider entitlement to staged ratings to compensate for times since the claim was filed when the disability may have been more severe than at other times during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In such case, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. In the instant case, the Veteran filed a claim on September 29, 2010, for service connection for his left knee as secondary to his service-connected right knee disability. In substantiating this claim, records were retrieved which indicated that the Veteran had undergone surgery for his right knee in August 2010, and the RO inferred a claim for an increase for the Veteran's right knee disability. As such, the date of claim is September 29, 2010, and the period under consideration begins on September 29, 2009. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 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 of the two evaluations 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. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Court has also held that, "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 states that, "The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Painful motion is an important factor of disability, and actually painful, unstable, or maligned joints, due to healed injury are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Diagnostic Code 5257 refers to other impairments of the knee, specifically recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides that "slight" impairment is rated at 10 percent. "Moderate" impairment is rated at 20 percent. A maximum rating of 30 percent is reserved for "severe" impairment. Diagnostic Code 5003 for degenerative arthritis provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Diagnostic Code 5003 also provides that limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the instant case, the joint involved is the knee. Diagnostic Code 5260 refers to limitation of motion in flexion of the knee and leg. Under this diagnostic code, flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants the maximum rating under Diagnostic Code 5260, which is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 refers to limitation of motion in extension of the knee and leg. Under this diagnostic code, extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants the maximum rating under Diagnostic Code 5261, which is 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). Analysis Facts The Veteran contends that his right knee instability and degenerative disc disease are more disabling than the ratings assigned. The Board has reviewed the record and will discuss evidence relevant to a higher rating for the issues on appeal. The Board need not overtly discuss all evidence in the claims file. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Accordingly, the Board notes that the Veteran is already service-connected for scars associated with his right knee conditions, and that rating is not on appeal. As such, the Board will not discuss findings related to the Veteran's right knee scars. In the instant case, the relevant medical evidence of record includes VA examination and private treatment reports, which the Board will discuss chronologically. A June 2010 MRI performed on the Veteran's right knee at Temple VA Medical Center indicates a cystic collection at the anterior aspect of the knee laterally. The MRI also indicated trace effusion in the upper patellar recess of the right knee. An August 2010 operative note from Central Texas Health Care Center (HCS) indicates that the Veteran underwent cyst removal for a torn lateral meniscus with anterior maniacal cyst per the June 2010 MRI. A December 2010 orthopedic surgery note from Central Texas HCS indicates that the Veteran was following up for re-evaluation of his right knee following the August 2010 arthroscopic surgery. The note indicates that at that time, there was no swelling, effusion, or instability of the right knee. X-rays indicated degenerative joint disease of the right knee. The Veteran also underwent VA examinations for his right knee in September 2011 and September 2016. At the outset, the Board acknowledges that the Veteran expressed contentions with the September 2011 and September 2016 VA examinations. He has indicated that the September 2011 VA examiner misquoted him and did not examine him properly and that the September 2016 VA examiner was not an orthopaedic specialist. The Board notes that a medical examiner is presumed competent in the absence of evidence to the contrary. Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009). Additionally, the Board is entitled to presume the competence of a VA examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). In this case, the VA examiners physically examined the Veteran and assessed the rating criteria; the findings are also overall consistent with the record. As such, the Board finds the September 2011 and September 2016 VA examinations adequate for rating purposes. The September 2011 VA examiner indicated diagnoses for patellar dislocation, chondromalacia and excision of meniscal cyst for the right knee. The examiner noted the 1987 lateral patellar release procedure and August 2010 meniscal cyst removal surgery. The VA examiner indicated that the Veteran had intermittent pain, which occurs weekly and lasts for hours to a couple of days. The examiner also noted the Veteran's reports of swelling and that his right knee gives away. The examiner indicated that the Veteran reports flare-ups per these symptoms. Physical examination indicated that the Veteran's range of motion measured as flexion of 135 degrees, and the examiner indicated no limitation of extension. The examiner indicated there was no objective evidence of painful motion. The examiner indicated the Veteran was able to perform repetitive use testing and that his post-test range of motion was 135 degrees of flexion. The examiner indicated there was no additional limitation in range of motion of the knee and lower leg following repetitive-use testing. The examiner indicated no functional loss and/or functional impairment of the knee and lower leg. The examiner indicated that the Veteran has tenderness or pain to palpation for joint line or soft tissues of right knee. Muscle strength testing was all normal for the right knee. Joint stability tests were also all normal for the right knee. The examiner indicated there was evidence or history of recurrent patellar subluxation/dislocation for the right knee; the examiner indicated that the severity was "slight." The examiner indicated the Veteran did not have and had not had "shin splints" (medial tibia stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibia and/or fibula impairment. The examiner indicated that the Veteran had meniscal conditions or surgical procedures for a meniscal condition, but the examiner did not specify severity or frequency of symptoms. The examiner indicated that the Veteran had not had a meniscectomy and that there were no residual signs and/or symptoms due to a meniscectomy. The examiner indicated the Veteran had not had total knee joint replacement but had arthroscopic or other knee surgery for the right knee. The examiner specified that the Veteran had lateral release in 1987 and drainage of a cyst on meniscus in August 2010. As to residual signs and/or symptoms due to arthroscopic or other surgery of the right knee, the VA examiner indicated that the Veteran has residual pain. The examiner noted that the Veteran regularly uses a knee brace as an assistive device. The examiner indicated there were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to the Veteran's right knee. In September 2016, the Veteran underwent another VA examination for his right knee. The examiner noted the diagnoses for painful motion due to dislocated right patella and chondromalacia. The examiner indicated that although the Veteran's condition contains the term "chondromalacia," which is a form of degenerative joint disease usually described on the patella, the more appropriate diagnosis for the right knee condition would be post-traumatic degenerative joint disease and para-meniscal cyst of the right knee as the Veteran's pathology is not limited to the patella. The examiner indicated that this is not a "progression" but rather a correction of the original diagnosis. The examiner noted the 1987 lateral patellar release procedure and August 2010 meniscal cyst removal surgery. The examiner indicated there was subsequent swelling and injections, which had helped for about four months. As to current symptoms, the examiner indicated there was no swelling. The examiner indicated that the Veteran's right knee pain was constant day to day, is aggravated by climbing stairs and prolonged walking, and occasionally locks up. The examiner indicated that the Veteran did not report flare-ups but reported having functional loss or functional impairment of the joint or extremity. The examiner specified that the Veteran reported that his bilateral knee condition prevents him from running or umpiring baseball games and that the pain is aggravated by biking, hunting, prolonged walking, or climbing stairs. Physical examination indicated that the Veteran's range of motion measured as flexion of 0 to 125 degrees and extension of 125 to 0 degrees. The examiner indicated that range of motion itself does not contribute to functional loss. The examiner indicated pain was noted on exam and causes functional loss. The examiner indicated there was evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner also indicated there was objective evidence of crepitus. The examiner indicated that the Veteran was able to perform repetitive use testing with at least three repetitions and that there was no additional functional loss or range of motion after three repetitions. The examiner indicated that the Veteran was not being examined immediately after repetitive use over time but that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner indicated that because the Veteran was not being examined following repeated use over time, he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. The examiner did not address flare-ups as the Veteran did not report flares-ups. The examiner indicated there were no additional contributing factors of the Veteran's right knee disability. Muscle strength testing was all normal. The examiner indicated there was no muscle atrophy and no ankylosis. As to joint stability for the right knee, the examiner indicated there was no history of recurrent subluxation, history of lateral instability, or history of recurrent effusion. The examiner indicated that joint stability testing indicated no joint instability. As to tibia and/or fibula impairment, the examiner indicated that the Veteran had a history of recurrent patellar dislocation of the right knee, which the examiner specified was "moderate" in severity. The examiner indicated that the Veteran has a meniscus (semilunar cartilage) condition for the right knee. The examiner specified that the Veteran had a lateral parameniscal cyst of the right knee, status-post arthroscopic debridement in August 2010 and that the Veteran reported occasional locking of the right knee. The examiner indicated that on current examination, there were no palpable clicks felt with manoeuvring the right knee. As to the previous surgical procedures for the right knee, the examiner indicated that the Veteran has residual signs or symptoms of chronic pain and stiffness. As to other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's right knee, the examiner indicated that the Veteran verbalized that pain with motion hurt and that he jumped slightly. The examiner indicated that the Veteran's gait is abnormal with slight varus positioning of the right leg and minimal limp during walking but that his gait is brisk and stable. The examiner noted that the Veteran regularly uses a knee brace as an assistive device. As to additional comments, the examiner indicated that the Veteran has ongoing increasing pain in his right knee and is not responding to steroid injections. Right Knee Instability Having reviewed the evidence of record, the Board finds that staged ratings are warranted for the Veteran's right knee instability. See Hart v. Mansfield, 21 Vet. App. at 505. The September 2016 VA examination indicates an increase in severity since the September 2011 VA examination. As such, the Board will discuss the Veteran's right knee instability prior to and from September 21, 2016. Prior to September 21, 2016 Having reviewed the evidence of record, medical and lay, the Board finds that a 10 percent rating is warranted for the Veteran's right knee instability prior to September 21, 2016. The September 2011 VA examiner indicated that the Veteran had "slight" patellar subluxation of the right knee. As discussed, the Board acknowledges the Veteran's contentions with this examination but finds the examination adequate and probative as the VA examiner physically examined the Veteran and performed appropriate testing. Accordingly, as slight subluxation is commensurate with a 10 percent rating under Diagnostic Code 5257, the Board determines that a 10 percent rating is warranted for the Veteran's right knee instability during this period of the appeal. A higher rating is not warranted as there is no indication that the Veteran's right knee instability was moderate or severe during the appeal period. In characterizing the Veteran's right knee instability as slight, the September 2011 VA examiner acknowledged that the Veteran uses a knee brace regularly as well as his statements that his right knee gives away occasionally. As such, the Board determines there is no basis for a higher rating. Accordingly, the Board finds that a 10 percent rating, but no higher, is warranted for the Veteran's right knee instability prior to September 21, 2016 From September 21, 2016 Having reviewed the evidence of record, medical and lay, the Board finds that an increase to a 20 percent rating is warranted for the Veteran's right knee instability from September 21, 2016. The September 2016 VA examination, which as mentioned the Board finds probative, establishes that the Veteran's right knee subluxation increased in severity from slight to moderate. The September 2016 VA examiner indicated that the Veteran has moderate patellar dislocation of the right knee. The Board notes that subluxation is partial dislocation. Thus, as the record establishes moderate instability, the Board finds that a 20 percent rating is warranted under Diagnostic Code 5257 from September 21, 2016, the date of examination. However, a higher rating is not warranted during this period of the appeal as there is no indication that the Veteran's right knee instability was severe. Given the evidence, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran's right knee instability from September 21, 2016. Right Knee Degenerative Disc Disease Having reviewed the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's right knee degenerative disc disease. The Veteran's degenerative disc disease of the right knee has been assigned a 10 percent rating for functional loss due to painful motion pursuant to 38 C.F.R. § 4.59, which allows for the lowest compensable rating available for limitation of motion for a joint if there is acknowledged painful motion. A higher rating for limitation of motion of the knee requires flexion limited to 30 degrees or extension limited to 15 degrees. See Diagnostic Codes 5260 and 5261. In this case, the probative evidence reflects that during the appeal period, the Veteran's most limited flexion and extension of the right knee were 125 degrees. See September 2016 VA examination. As such, a higher rating is not warranted based on limitation of motion of the Veteran's right knee. Nor is a higher rating warranted for additional limitation of motion. The Board acknowledges the Veteran's reports that his right knee condition causes pain and weakens his ability to stand or walk for prolonged periods. The Board notes that painful motion is already compensated in the 10 percent rating assigned. However, physical examination of the Veteran consistently indicated no additional limitation of motion due to pain, weakness, fatigability, or incoordination. Nor is a higher rating warranted under other diagnostic codes relating to the knee and leg. The record reflects that the Veteran has had a meniscal tear. However, the record does not indicate removal of the meniscus. To the contrary, the September 2011 and September 2016 VA examiners acknowledged the August 2010 right knee meniscal cyst removal but specified that the Veteran had never had a meniscectomy (removal of the meniscus). Further, his symptoms are compensated by the 10 percent rating assigned and to award a separate rating for the same symptoms would constitute impermissible pyramiding. 38 C.F.R. § 4.14 (2017). As such, a rating under Diagnostic Code 5259 for cartilage, semilunar, removal is not warranted. 38 C.F.R. § 4.71a. The Board acknowledges that the Veteran has reported locking, swelling, and pain as a result of the August 2010 knee surgery. The Veteran is competent to report these symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a lay person is competent to report observable symptoms). While the Board has no reason to doubt the credibility of his statements, they are outweighed by the probative medical evidence of record. The probative medical evidence indicates locking, swelling, and crepitus but also explicitly indicates that there is no history of recurrent effusion. Specifically, while the June 2010 MRI indicated trace effusion of the right knee, the December 2010 medical report following the Veteran's meniscal surgery indicates there was no swelling or effusion following the procedure. Additionally, the September 2016 VA examiner also acknowledged the August 2010 procedure and indicated there was no recurrent effusion of the right knee. Thus, the more probative evidence does not support that the Veteran's right knee condition resulted in frequent locking and effusion. As such, a rating under Diagnostic Code 5258 is not applicable. 38 C.F.R. § 4.71a. As to other diagnostic codes, the probative evidence indicates that there has been no total replacement or ankylosis of the right knee. Nor has the Veteran alleged as such. Therefore, Diagnostic Codes 5055 and 5256 are not for application. 38 C.F.R. § 4.71a. The probative evidence also indicates that the Veteran does not have any tibia or fibula impairments related to the right knee or leg. As such, Diagnostic Code 5262 is not applicable. Id. Consideration has also been given to assigning staged ratings. However, the Board finds that at no time during the period in question has the disability warranted a higher or lower schedular rating than that assigned. Hart v. Mansfield. Essentially, the Veteran's symptoms for his right knee degenerative disc disease have been consistent over the appeal period; his right knee disability has been demonstrative of painful motion without limitation of motion to a compensable level. Thus, there is no basis for assigning staged ratings. At no point during the appeal period did the Veteran's flexion or extension of the right knee fall within a range commensurate with a higher rating. Accordingly, the Board finds that the disorder has not significantly changed, and a uniform rating is warranted. In light of the evidence, the Board determines that a rating of 10 percent, but no higher, is warranted for the Veteran's right knee degenerative disc disease throughout the appeal period. ORDER A rating in excess of 10 percent for right knee instability prior to September 21, 2016, is denied. A rating of 20 percent for right knee instability from September 21, 2016, is granted. A rating in excess of 10 percent for right knee degenerative disc disease is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs