Citation Nr: 1800443 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-02 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent, for right knee instability. 2. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, right knee status post tibial fracture. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brandon A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1989 to September 2009 These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In December 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and has been reviewed. In February 2014, the Board remanded the issues on appeal for further development, specifically a supplemental statement of the case (SSOC). The claims were again remanded in November 2016 for a new VA examination. A review of the claims folder reflects the RO has substantially complied with the November 2016 remand instructions by obtaining a VA examination in June 2017 and subsequently issuing an SSOC. FINDINGS OF FACT 1. The evidence demonstrates the Veteran's right knee disability was manifested by subjective complaints of pain and instability. Objectively the Veteran's right knee was manifested by range of motion from 0 to 115 degrees or greater in right leg flexion and 0 degrees in right leg extension, with slight lateral instability on clinical testing. 2. The evidence demonstrates that throughout the appeals period the Veteran's degenerative joint disease, right knee status post tibial fracture was manifested by semilunar cartilage condition with episodes of frequent locking, pain, and effusion. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for degenerative joint disease, right knee status post tibial fracture, have not been met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260 (2017). 2. The criteria for an initial rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 3. The criteria for a separate rating of 20 percent throughout the appeals period for semilunar cartilage condition associated with the Veteran's service-connected degenerative joint disease, right knee status post tibial fracture, have been met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155 (West 2014); 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 evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Musculoskeletal Disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 and 4.45 (2017), see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. However, pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Degenerative or traumatic 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. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, 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. 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 evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5024 (2017). Flexion and Limitation of the Lower Extremity DC 5260 provides a noncompensable rating when flexion is limited to 60 degrees or more. A 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent evaluation is for leg flexion limited to 30 degrees. A 30 percent evaluation is for leg flexion limited to 15 degrees. DC 5261 provides a noncompensable rating when extension is limited to 5 degrees or less. A 10 percent rating is warranted for leg extension limited to 10 degrees. A 20 percent evaluation is for leg extension limited to 15 degrees. A 30 percent evaluation is for leg extension limited to 20 degrees. A 40 percent evaluation is for leg extension limited to 30 degrees. A 50 percent evaluation is for leg extension limited to 45 degrees. In VAOPGCPREC 9 - 2004 (Sept. 17, 2004), it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. As such, if the evidence of record reflects compensable loss of both flexion and extension of either leg, the Veteran would be entitled to the combined evaluation under Diagnostic Codes 5260 and 5261, per the combined ratings table in 38 C.F.R. § 4.25. Instability of the Knee Instability of the knee and limitation of motion of the knee are two separate disabilities. As such, it is permissible to award separate ratings under both a range of motion code and an instability code (DC 5257), without violating the prohibition on pyramiding. See VAOPGCPREC 23-97. DC 5257 is predicated on instability, rather than limitation of motion, therefore, an analysis under DeLuca does not apply. See Johnson v. Brown, 9 Vet. App. 7 (1996). Under DC 5257, for recurrent subluxation or lateral instability of the knee, a 10 percent evaluation is warranted for slight knee impairment. A 20 percent evaluation is warranted for moderate knee impairment. A 30 percent evaluation is warranted for severe knee impairment. Words such as "mild", "slight", "moderate", "marked", and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. A rating under DC 5256 is not for application because the evidence of record is against a finding of ankylosis. Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing Dorland's Illustrated Medical Dictionary (28TH Ed. 1994) at 86).The medical evidence reflects that the Veteran's right knee range of motion is at least 0 to 115 degrees, the evidence is against a finding of ankylosis; thus, a rating under DC 5256 is not warranted. (See February 2014 private Disability Benefits Questionnaire (DBQ)). The objective medical evidence within the claims folder reflects the Veteran's right knee with slight lateral instability. (See December 2009 VA medical examination). The Veteran is entitled to a separate rating under DC 5257 if the evidence reflected that he had severe, moderate, or slight recurrent subluxation or lateral instability. The evidence of record, as discussed above, is against a finding that the Veteran has had moderate or severe recurrent subluxation or lateral instability. As such, a rating in excess of 10 percent for right knee instability is not warranted here. Joint instability can be objectively diagnosed upon clinical examination. The clinical evidence of record, noted above, is against a finding of moderate or severe instability within the Veteran's right knee. The Board acknowledges the Veteran's lay statements of instability, pain, and giving way of her right knee. However; under clinical stability testing the Veteran's right knee was found to have no more than slight lateral instability and no recurrent subluxation. While the Board acknowledges that the Veteran is competent to attest to her experiences and pain associated with her right knee; the Board finds that the clinical findings to be more probative than the Veteran's lay assertions as they are based on clinical testing by a medical profession. A separate rating of 20 percent under DC 5258 is warranted because the evidence reflects the Veteran with a semilunar cartilage condition with frequent episodes of locking, pain and effusion into the right knee joint. (See September 2013 VA medical examination, February 2014 DBQ, and June 2017 VA medical examination). A separate rating under Diagnostic Code 5259 would not be warranted, because the symptoms related to the Veteran's right knee semilunar cartilage condition are compensated by the rating under Diagnostic Code 5258. The evaluation of same disability or the same manifestation under various diagnoses, a practice known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). In determining if separate ratings may be assigned for different service-connected conditions "[T]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). If the symptoms are "distinct and separate" then the individual is entitled to separate disability ratings for the various conditions. Id. Here, the Veteran's residual symptoms associated with her right knee semilunar removal are the same or similar manifestations with regard to her right knee semilunar tear. As such, a separate compensable under Diagnostic Code 5259 is not warranted. The June 2017 VA examination report reflects that the Veteran has 0 to 125 range of motion within her right knee. The Veteran's right knee extension ended at 0 degrees. The examination further noted no additional range of motion loss on repetitive testing. The February 2014 DBQ reflects that the Veteran has 0 to 125 range of motion within her right knee, with objective evidence of pain beginning at 115 degrees. The Veteran's right knee extension ended at 0 degrees. The examination further noted on repetitive testing the Veteran's right knee had a 0 to 120 range of motion and right knee extension ended at 0 degrees. A September 2013 VA medical examination reflects 130 degrees of flexion with objective evidence of pain beginning at 120 degrees and 0 degrees of extension for the Veteran's right knee. The examination reflects no additional loss of range of motion on repetitive testing. A March 2011 VA medical examination reflects 140 degrees of flexion with objective evidence of pain and normal extension for the Veteran's right knee. The examination reflects no additional loss of range of motion on repetitive testing. A December 2009 VA medical examination reflects 125 degrees of flexion with objective evidence of crepitus and pain and 0 degrees of extension for the Veteran's right knee. The examination reflects no additional loss of range of motion on repetitive testing. A rating under DC 5260 in excess of 10 percent is not warranted, as the medical evidence does not reflect the Veteran experienced a functional loss to a degree that would warrant a rating under this code. The clinical evidence reflects that the Veteran has at least 0 to 115 degrees range of motion (at its worst considering pain) in regard to her right leg flexion. A compensable rating under DC 5261 is not warranted, as the medical evidence does not reflect the Veteran experienced a functional loss to a degree that would warrant a rating under this code. The clinical evidence reflects that the Veteran had a full range of motion in regard to right leg extension. A rating under DC 5262 is not warranted because the evidence does not reflect that the Veteran has malunion or nonunion of the tibia and fibula. A rating under DC 5263 is not warranted because the evidence does not show that she has acquired genu recurvatum. The Board notes the Veteran's lay statements and objective medical evidence. Importantly, the Board acknowledges the medical examinations which reflect the Veteran with pain on weight bearing, pain on passive and active range of motion, objective evidence of crepitus, slight lateral instability, locking and pain. Based on above, the Board finds that entitlement to an increased rating in excess of 10 percent for right knee instability and entitlement to an increased rating in excess of 10 percent for degenerative joint disease, right knee status post tibial fracture is not warranted here. However, the Board finds that a separate rating of 20 percent under DC 5258 is warranted for the Veteran's semilunar cartilage condition associated with her service-connected degenerative joint disease, right knee status post tibial fracture. Total rating for compensation purposes based on individual unemployability (TDIU) Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The record does not indicate that the Veteran has been unable to maintain substantial gainful employment specifically due to her right knee disability. Thus, the issue of entitlement to TDIU has not been reasonably raised by the record. ORDER Entitlement to an initial disability rating in excess of 10 percent, for right knee instability is denied. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, right knee status post tibial fracture is denied. Entitlement to a separate rating of 20 percent disabling for semilunar cartilage condition associated with her service-connected degenerative joint disease, right knee status post tibial fracture, is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs