Citation Nr: 1800471 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-08 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for a left knee disability, status-post arthroscopic repair, prior to March 1, 2013. 2. Entitlement to an evaluation in excess of 10 percent for a left knee disability, status-post arthroscopic repair, on or after March 1, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran had active service from August 1976 to March 1982. The case initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Jurisdiction was subsequently transferred to the RO in Nashville, Tennessee. The Board notes that the Veteran submitted a notice of disagreement with a December 2012 rating decision that reduced the disability evaluation for his service-connected left knee disability from 30 percent to 10 percent, effective March 1, 2013. However, he did not submit a substantive appeal following the issuance of a January 2016 statement of the case that addressed the propriety of that rating reduction. Therefore, that issue no longer remains in appellate status, and no further consideration is required. In March 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board remanded the case for further development in August 2013, October 2016, and July 2017. That development was completed, and the case has since been returned to the Board for appellate review. FINDINGS OF FACT 1. Prior to March 1, 2013, the Veteran's service-connected left knee disability, status-post arthroscopic repair, was already assigned the maximum evaluation available for limitation of flexion. 2. Prior to March 1, 2013, the Veteran's service-connected left knee disability, status-post arthroscopic repair, was productive of painful motion, but was not productive of actual or functional extension limited to 10 degrees; recurrent subluxation or lateral instability; ankylosis; dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint; impairment of the tibia and fibula; or genu recurvatum. 3. Since March 1, 2013, the Veteran's service-connected left knee disability, status-post arthroscopic repair, has been productive of painful motion, but has not been productive of actual or functional extension limited to 10 degrees; actual or functional flexion limited to 30 degrees; recurrent subluxation or lateral instability; ankylosis; dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint; impairment of the tibia and fibula; or genu recurvatum. 4. The Veteran has had chronic left knee pain and stiffness since his 2007 left meniscus surgery. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for a left knee disability, status-post arthroscopic repair, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5003, 5260 (2017). 2. The criteria for an evaluation in excess of 10 percent for a left knee disability, status-post arthroscopic repair, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5003, 5260 (2017). 3. The criteria for a separate 10 percent evaluation for symptomatic removal of the semilunar cartilage of the left knee have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59 4.71a, Diagnostic Code 5259 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, 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. Thus, 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. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.14 do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the Diagnostic Code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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. VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also held that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). In this case, the Veteran's service-connected left knee disability, status-post arthroscopic repair, is currently assigned a 30 percent evaluation, prior to March 1, 2013, and a 10 percent evaluation, beginning on March 1, 2013, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5260. Under Diagnostic Code 5260, a noncompensable evaluation is contemplated for flexion limited to 60 degrees. A 10 percent disability evaluation is assigned when flexion is limited to 45 degrees, and a 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability evaluation is assigned when flexion is limited to 15 degrees, which is the maximum evaluation available under Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable evaluation is assigned for extension limited to 5 degrees, and a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. When there is limitation of extension to 15 degrees, a 20 percent disability evaluation is warranted. A 30 percent rating will be assigned for extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees. A 50 percent disability evaluation is warranted for extension limited to 45 degrees. The regulations provide that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, a 10 percent disability rating is assigned for slight recurrent subluxation or lateral instability. A 20 percent disability rating is warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "mild," "moderate," and "severe" as used in the various diagnostic codes 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. Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Semilunar cartilage is the meniscus lateralis articulationis genus (lateral meniscus) and the meniscus medialis articulationis genus (medial meniscus). See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 273, 1013 (28th ed. 1994). A 20 percent rating is the maximum schedular evaluation available under Diagnostic Code 5258. Under Diagnostic Code 5259, a 10 percent disability evaluation is assigned for the symptomatic removal of semilunar cartilage. Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under Diagnostic Code 5263, a 10 percent disability rating is assigned for acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71a, Diagnostic Code 5263. Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, 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, which, in this case, would be Diagnostic Codes 5260 (limitation of flexion of the leg) and 5261 (limitation of extension of the leg). When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion 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 evaluation 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 evaluation is authorized 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board has reviewed the evidence of record, including the VA examination reports, VA treatment records, and the Veteran's lay statements. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to increased ratings for his left knee disability. However, he is entitled to a separate 10 percent rating for symptomatic removal of the semilunar cartilage. Initially, the Board finds that the Veteran is not entitled to a higher evaluation under Diagnostic Code 5260 for limitation of flexion for either period on appeal. Specifically, for the period prior to March 1, 2013, the Board notes that a 30 percent evaluation is the maximum schedular evaluation under that diagnostic code. Therefore, the Veteran is not entitled to a rating in excess of 30 percent for the period prior to March 1, 2013, for limitation of flexion. For the period since March 1, 2013, the record does not show that flexion was limited to 30 degrees or less to warrant a higher evaluation at any point. In fact, during a May 2014 VA examination, the Veteran had left knee flexion to 45 degrees, and during an August 2017 VA examination, he had flexion to 53 degrees. In addition, the August 2017 examiner noted that, while the Veteran had pain on flexion of the left knee, it did not result in or cause functional loss. Thus, the Veteran does not meet the criteria for an increased evaluation for either period under Diagnostic Code 5260. The Board also finds that the Veteran is not entitled to a higher or separate rating under Diagnostic Code 5261 for limitation of extension. For both periods on appeal, prior to and since March 1, 2013, the record does not show that extension was limited to 10 degrees to warrant a separate compensable disability rating. In fact, during February 2009, March 2011, May 2012, May 2014, and August 2017 VA examinations, the Veteran demonstrated left knee extension to 0 degrees with no objective evidence of pain on motion during the February 2009, May 2014, and August 2017 VA examinations. As such, an increased or separate evaluation under Diagnostic Code 5261 is not warranted. In an effort to afford the Veteran the highest possible rating, the Board has also considered whether any other rating criteria are applicable. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board finds that the Veteran is not entitled to a separate 10 percent evaluation for instability under Diagnostic Code 5257 for either period on appeal. During the February 2009 VA examination, the Veteran reported that he had instability in his left knee. However, the March 2011 and May 2012 VA examiners found no objective evidence of left knee instability on examination. In the May 2012 VA examination report, the VA examiner also noted that instability testing for medial and lateral collateral ligaments, anterior and posterior cruciate ligraments, and menisci were normal. Likewise, in the May 2014 VA examination report, the VA examiner noted that joint stability testing, including anterior, posterior, medial, and lateral instability testing, was normal despite the Veteran's report that he had instability of station in his left knee. Further, the August 2017 VA examiner indicated that left knee joint stability testing showed no instability. Specifically, anterior, posterior, medial, and lateral instability testing were normal. Moreover, the May 2012 and May 2014 VA examiners reported that there was no evidence or history of recurrent patellar subluxation or dislocation. Notably, the VA examiners considered the Veteran's reported history and subjective complaints, including the sensation of instability, but they concluded that he did not have lateral instability based on objective testing. Therefore, the Board finds the findings of the VA examiners to be probative, as they considered both the subjective and objective findings. Thus, higher or separate evaluations are not warranted under Diagnostic Code 5257. Pertaining to Diagnostic Codes 5258 and 5259, the Board notes that the Veteran's representative has asserted that the claims file demonstrates that a separate 10 percent evaluation is warranted for removal of symptomatic semilunar cartilage of the left knee since 2007. Semilunar cartilage is the meniscus lateralis articulationis genus (lateral meniscus) and the meniscus medialis articulationis genus (medial meniscus). See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 273, 1013 (28th ed. 1994). The March 2011 VA examiner noted that the Veteran's right knee meniscus was normal, and the May 2012 VA examiner specifically indicated that the Veteran has never had a meniscus (semilunar cartilage) condition. However, the May 2014 VA examiner stated that the Veteran had a left meniscectomy in 2007 and that he had a meniscus condition with frequent episodes of joint locking and pain. The November 2016 and August 2017 VA examiner also noted that the Veteran had a left meniscal tear that was documented in a June 2012 VA magnetic resonance imaging (MRI) study. The August 2017 VA examiner indicated that the Veteran had chronic left knee pain and stiffness since his 2007 open meniscus surgery. Therefore, the Board finds that the Veteran is entitled to a separate 10 percent evaluation for symptomatic removal of semilunar cartilage under Diagnostic Code 5259. However, he is not entitled to a separate 20 percent evaluation under Diagnostic Code 5258 because the semilunar cartilage was removed and the resulting symptomatology is contemplated in the 10 percent evaluation contemplated under Diagnostic Code 5259. The Board has also considered whether a higher or separate evaluation is warranted under any other diagnostic code. However, as the evidence of record does not demonstrate that the Veteran has ankylosis, impairment of the tibia and fibula, or genu recurvatum, he is not entitled to higher evaluations under Diagnostic Codes 5256 (ankylosis), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum). There is simply no evidence of such manifestations. In addition, based on the aforementioned range of motion findings, the record shows that the Veteran's right knee is not fixated or immobile. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Therefore, separate or higher ratings are not warranted under Diagnostic Codes 5256, 5262, and 5263. In addition, the Board notes that the Veteran is currently assigned a 10 percent rating under Diagnostic Code 5260, which contemplates painful motion. There is no x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Thus, an increased evaluation is not warranted under Diagnostic Code 5010. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's left knee disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned evaluations, and no higher. In this regard, the Board observes that the Veteran complained of pain throughout both periods on appeal. However, the effect of the pain in the Veteran's left knee is already contemplated in the assigned evaluations. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation beyond those already assigned. Indeed, the May 2012, May 2014, and August 2017 VA examiners indicated that the Veteran's left knee did not have any diminution with repetitive testing. The examiners also noted normal muscle strength and reported that there was no weakened movement, excess fatigability, incoordination, swelling, deformity, or atrophy of disuse. Accordingly, the Board concludes that an increased or separate evaluation is not warranted for the Veteran's service-connected left knee disability under DeLuca. Finally, although the examiners noted a scar, the April 2009 VA examiner indicated that it was a small surgical scar measuring 20 centimeters by one centimeter along the left knee. The May 2014 VA examiner also stated that the scar was not painful and/or unstable and that the total area was not greater than 39 square centimeters or six square inches. Accordingly, a separate evaluation is not warranted on this basis. See 38 C.F.R. § 4.118. 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, 368 (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 Prior to March 1, 2013, an evaluation in excess of 30 percent for a left knee disability, status-post arthroscopic repair, based on limitation of flexion is denied. Beginning on March 1, 2013, an evaluation in excess of 10 percent for a left knee disability, status-post arthroscopic repair, based on limitation of flexion is denied. A separate 10 percent evaluation for left knee symptomatic removal of semilunar cartilage is granted. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs