Citation Nr: 1801869 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-15 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee or right hip disability. 2. Entitlement to a right knee disability evaluation in excess of 10 percent based upon limitation of motion, excluding the period for which a temporary total rating has been assigned due to surgical convalescence. 3. Entitlement to a right knee disability evaluation in excess of 10 percent based upon subluxation, excluding the period for which a temporary total rating has been assigned due to surgical convalescence. 4. Entitlement to a separate compensable right knee disability evaluation based upon symptomatic removal of semilunar cartilage. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1997 to August 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) in September 2012 which granted a 10 percent rating for the right knee based upon limitation of motion, and an April 2013 rating decision that denied service connection for a left knee disability. During the pendency of the current appeal for an increased rating for the right knee, the Veteran was granted a separate 10 percent evaluation based on subluxation in October 2014. The United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the claim continues. The Veteran appeared before the undersigned Veterans Law Judge in Travel Board hearing in August 2015 to present testimony on the issues on appeal. The Board notes that a VA Form 9 is not of record with regard to the Veteran's claim of entitlement to service connection for a left knee disability. Instead, in November 2014, the Veteran submitted a "Notice of Disagreement" form following receipt of the October 2014 Statement of the Case. It appears as though this document has been accepted as a substantive appeal in lieu of the Form 9. He has since clearly indicated his intent to continue the appeal and pursue the Board's review on this issue. Board hearing transcript, August 2015; Letter from Veteran, June 2015. As such, where the appeal has not been closed pursuant to 38 U.S.C. § 7105(d)(3) and has previously been treated as a timely filing of a substantive appeal, the absence of a prescribed form does not deprive the Board of jurisdiction to consider the merits of the issue. See also Percy v. Shinseki, 23 Vet. App. 37 (2009). This appeal was subject to a prior remand by the Board in February 2016 to ensure compliance with due process requirements. Recent VA treatment records have been associated with the claims file, and an additional VA examination was afforded the Veteran in January 2017. Therefore, the Board's directives as to the increased rating claim for the right knee are satisfied. However, in regard to the claim of entitlement to service connection for the left knee, the Board finds that the January 2017 examination did not adequately address all prior Board remand instructions, and another examination is required. Stegall v. West, 11 Vet. App. 268 (1998). The issue of service connection for a left knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's right knee disability has been manifested by functional limitation of motion to 10 degrees of extension and to 80 degrees of flexion at worst. 2. The Veteran's right knee disability has been manifested by no greater than slight subluxation of the patella. 3. The Veteran has undergone surgical removal of the semilunar cartilage, with subsequent objective evidence of pain on palpation of the patella, but without evidence of recurrent effusion, lateral instability, ankylosis of the joint, or other impairment of the tibia and fibula. CONCLUSIONS OF LAW 1. The criteria for a right knee disability rating in excess of 10 percent based upon limitation of motion are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5263. 2. The criteria for a right knee disability rating in excess of 10 percent based upon subluxation are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5263 (2017). 3. The criteria for a separate right knee disability rating of 10 percent based upon symptomatic removal of semilunar cartilage are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). With respect to notice provided to the Veteran, primarily in a July 2012 letter, the Veteran was informed of the information and evidence necessary to substantiate his claim and the process by which a disability rating is determined. The Board finds that the duty to notify is satisfied. With regard to VA's duty to assist in respect to the increased rating claim, the Veteran has previously asserted that the July 25, 2012 VA examination may not have been fully adequate because of the close proximity in time to a June 6, 2012 right knee surgery from which the Veteran was still healing. Hearing transcript, August 2015; see also VA examination report, July 2012. The July 2012 examination report reflects that the examiner did not perform joint stability testing because the Veteran had not been cleared for full activity after his recent surgery. This appears to have been intended to protect the Veteran from any unintended harm following his surgery. There is no objective evidence that the remaining test results are inadequate or do not accurately reflect the Veteran's right knee symptomatology at the time. A subsequent April 2013 examination was also asserted to be inadequate due to the examiner's overall demeanor and what the Veteran believed to be a hostile environment resulting in an unfair examination. Hearing transcript, August 2015. The Board is sympathetic to any additional stress this situation this may have presented, but there is no indication that the examiner misrepresented the objective test results or that the results obtained do not adequately reflect the severity of the Veteran's right knee disability at the time. In any event, subsequent to a prior Board remand in February 2016, the Veteran was afforded an additional VA knee examination in January 2017. Neither the Veteran nor his representative has raised any issues with regard to the adequacy of that January 2017 examination. Although the Board has found this examination did not adequately address all prior remand instructions on the issue of service connection, it is found to be adequate in regard to rating the Veteran's service-connected right knee disability. The Board finds the examination report and affiliated medical opinion to be sufficiently detailed, describing the Veteran's subjective reports of pain and discomfort as well as the objective medical findings pertinent to the right knee. Based on the foregoing, the Board finds that the Veteran has been adequately medically evaluated in regard to the increased rating claim for the right knee, and VA's duty to assist is fulfilled. The Board has reviewed all of the evidence within the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the given claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Rating for the Right Knee Disability evaluations are determined by application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The ratings percentages contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from service-connected disability and the residual limitations that result in civil occupations. Separate diagnostic codes (DC) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In determining the appropriate evaluation in a given case, many different statutes, regulations, and case law applicable to VA govern. Each disability must be viewed in relation to its history. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. When after careful consideration of all available data, a reasonable doubt arises regarding the degree of disability, such doubt must be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 covering functional loss and § 4.45 covering joints, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 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. Under VA regulations, evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is prohibited. 38 C.F.R. § 4.14. To do so would overcompensate the Veteran for his loss of earning capacity. See Brady v. Brown, 4 Vet. App. 203, 206 (1993). However, separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25. Specifically, when the symptomatology is distinct and separate, an additional rating is allowed. The critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping. Of particular note in this case, the Court of Appeals for Veterans Claims has recently expressly held that the Rating Schedule does not prohibit separate evaluations under DC 5257 for subluxation, DC 5260 or 5261 for limitation of motion, and a separate rating for meniscal impairment. Lyles v. Shulkin, No. 16-0994, 2017 U.S. App. Vet. Claims LEXIS 1704 (Vet. App. Nov. 29, 2017). Thus, the Board will consider each individual diagnostic code referable to the knee to determine if a separate or additional rating is warranted on any basis. Such evaluations involve consideration of the level of impairment of ability to engage in ordinary activities, to include employment, as well as an assessment of the effect pain or related symptomatology may have on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. 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 diagnosis, and demonstrated symptomatology. In this case, when the claim seeking an increased rating for the right knee was received, the Veteran was in receipt of a 10 percent rating based upon flexion of the knee joint limited to 45 degrees. Rating decision, March 2002. The Veteran then underwent right knee arthroscopic surgery on June 6, 2012. On the basis of that surgery, he received a temporary total (100 percent) disability rating during his convalescence pursuant to 38 C.F.R. § 4.30. Subsequent to that period of a temporary total rating, the Veteran was in receipt of a 10 percent evaluation for his service connected residuals of right knee arthroscopy, with medial meniscal tear and patellar tendonitis debridement, under Diagnostic Code 5010-5260 based on functional loss due to painful motion under 38 C.F.R. § 4.59. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Then, as of an October 2014 rating decision, an additional separate 10 percent evaluation was added for slight subluxation of the right knee under DC 5003-5257. At that time, the applicable diagnostic code for the Veteran's rating based on limitation of motion was also changed to 5010-5261 representing limitation of extension, as opposed to limitation of flexion. Normal range of motion of the knee joint is from 0 degrees extension (i.e. leg straight out) to 140 degrees flexion (i.e. bent knee). 38 C.F.R. § 4.71, Plate II. The Board has considered all ratings available for disabilities of the knee and leg to determine if the Veteran's impairment would qualify for a higher evaluation under any other pertinent diagnostic code. The Board will now proceed through an analysis of the relevant diagnostic codes in order. First, DC 5256 rates based on the presence of ankylosis, or immobility of the joint. As the Veteran has shown movement in his knee joint throughout the appellate period, this code is inapplicable. The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, DC 5257. Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. Prior to the June 2012 surgery, the Veteran's right knee was shown to be stable to varus valgus stress testing, Lachman testing and drawer testing without subluxation. See, e.g., VA treatment record, June 2012 & April 2012. As previously discussed, the examiner was unable to perform joint stability testing at the time of the July 2012 examination as the Veteran had not been cleared for full activity after his recent surgery, however, there was no evidence of patellar subluxation at that time. Joint stability testing was normal upon examination in April 2013, without evidence of subluxation. Upon examination in July 2014, all joint stability tests were normal bilaterally, but slight patellar subluxation was found. Subsequently, in January 2017, a VA examiner found no evidence of right knee recurrent subluxation or joint instability, with normal Lachman, posterior drawer, and varus valgus stress testing. That examiner went on to opine that there was no radiographic or objective evidence to support the prior finding of slight subluxation of the right patella, particularly given the December 2014 Merchant view x-ray evidence, which this examiner referred to as the "Gold Standard" for determining patellar subluxation, was negative for subluxation in this Veteran. This examiner found the prior examiner's identification of subluxation to be in error. VA examination, January 2017. While the Board will not disturb the existing 10 percent rating for subluxation, there is no evidence of moderate or severe subluxation to warrant a higher rating under this diagnostic code. DC 5258 allows for a 20 percent rating for dislocated semilunar cartilage (which includes a torn meniscus) where there are frequent episodes of "locking," pain, and effusion into the joint. The use of the conjunctive word "and" indicates this DC requires that all three symptoms must be present to award the contemplated rating. In this case, the Veteran has subjectively described symptoms of locking episodes and pain, but the Board does not find that confirmation of joint effusion is identified on examination. The Board notes that the July 2014 examination report includes an August 2013 x-ray imaging report that states "possible trace right suprapatellar joint effusion." However, the qualifier of a possibility is uncertain by definition, and effusion was not found on prior or subsequent examinations. VA examinations, April 2013; January 2017 (including October 2014 x-ray imaging impression showing no joint effusion seen). Given the nearly contemporaneous October 2014 imaging evidence with an unqualified statement of no effusion seen, nor effusion identified in other examinations of record, the Board finds that there is insufficient evidence of effusion into the joint to warrant a 20 percent rating under this DC. The next code, DC 5259, is more directly relevant to this Veteran's circumstance as it allows a 10 percent rating for symptomatic removal of semilunar cartilage. Here, the Veteran has twice undergone surgery for the medial meniscus, but is still symptomatic. See VA examinations, January 2017, April 2014 & July 2012; Hearing transcript, August 2015. As such, the Board finds that the Veteran's right knee disability warrants a separate 10 percent evaluation under DC 5259. This is the only evaluation available under this particular diagnostic code. The Board now turns to the next DCs 5260 and 5261 which evaluate disability based on limitation of motion. VA General Counsel has held that separate evaluations under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990 (September 17, 2004). Under DC 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. In this instance, flexion is shown to be limited to 100 degrees in January 2017, and to 85 degrees with objective evidence of painful motion beginning at 80 degrees in July 2014. VA examination reports, January 2017 & July 2014. Upon examination in April 2013, flexion of the right knee was limited to 90 degrees. Prior to the Veteran's 2012 surgery, range of motion was limited to 115 degrees flexion. VA treatment record, June 2012. However, even at the most severe manifestation of the Veteran's right knee disability as shown during the current appellate period, a limitation of flexion to 80 degrees is not compensable. 38 C.F.R. § 4.71a, DC 5260. DC 5261 rates based on limitation of extension. This code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to more than 20 degrees warrants higher still ratings. Prior to the June 2012 surgery, 5 degrees of hyperextension was shown. VA treatment record, June 2012. Upon examination in July 2012 and April 2013 normal extension of the right knee was demonstrated upon examination. However, upon examination in July 2014, the right knee was shown to be unable to fully extend, stopping at 10 degrees of extension, without objective evidence of painful motion. VA examination, July 2014. At its worst, the Veteran's right knee is shown to have extension limited to no greater than 10 degrees, warranting a 10 percent evaluation and no higher. Additional diagnostic codes referable to the knee are found at DC 5262 and 5263. However, as the evidence of record fails to demonstrate impairment of the tibia or fibula, or genu recurvatum, these diagnostic codes are inapplicable to the Veteran's disability. The Board further acknowledges that upon most recent examination in January 2017, the examiner stated that the Veteran reported no functional occupational limitation beyond pain. In sworn testimony before the undersigned, the Veteran described his knee symptoms as requiring him to get out of his patrol car and stretch while serving in law enforcement, and requiring him to sit to rest between haircuts while working as a barber. Hearing testimony, August 2015. The January 2017 examiner also noted that pain is a purely subjective complaint, and that in this instance, there was no objective evidence of causation for the Veteran's report of worsening right knee pain shown upon examination of the Veteran or on imaging studies of the right knee. The Veteran's subjective reports of pain were further found not to correlate with the objective physical findings and absence of findings on imaging studies. VA examination, January 2017. Nonetheless, the symptom of knee pain as described by the Veteran is found to be contemplated by the Diagnostic Codes 5257, 5259, and 5261 under which he is shown to be entitled to current ratings. The Veteran has not 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). In sum, the Board finds that the July 2014 examination results are somewhat of an outlier in finding subluxation and possible effusion, as well as more significant limitation of motion than the other three VA examinations occurring during the present appellate period. Nonetheless, although current evidence may not reflect compensable limitation of motion or subluxation, the Board will not disturb the Veteran's existing ratings. The Board also finds that in the presence of symptomatic removal of semilunar cartilage, a separate 10 percent rating is allowed under DC 5259. Lyles v. Shulkin. The preponderance of the evidence is against increased ratings for the Veteran's right knee disability in excess of 10 percent based on limitation of motion and 10 percent based on subluxation. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. The Board finds that there is no evidence that warrants a higher right knee rating on any other grounds. (CONTINUED ON NEXT PAGE) ORDER A right knee disability evaluation in excess of 10 percent based upon limitation of motion is denied. A right knee disability evaluation in excess of 10 percent based upon subluxation is denied. A separate right knee disability evaluation of 10 percent based upon symptomatic removal of semilunar cartilage is granted. REMAND The claim of secondary service connection for the left knee requires additional development of the medical evidence. Specifically, the Board finds that the prior January 2017 examination did not fully respond to the questions presented in the Board's prior February 2016 remand. As a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders, the Veteran must be afforded an additional examination to include the specific determinations requested. See Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges that the Veteran has undergone multiple VA examinations for the claimed knee conditions during the appellate period. However, there is no consensus as to what, if any, diagnosis applies to the Veteran's left knee disability, and a complete nexus opinion has yet to be rendered. Given the complexity of the medical issues involved, examination by an orthopedic specialist, if available, is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a knee examination, with an orthopedic specialist if available, to determine the nature and etiology of his claimed left knee disorder. Any indicated tests should be completed. The electronic claims file must be made available to and be reviewed by the examiner prior to a personal examination of the Veteran. Attention is especially invited to the prior examinations of April 2013, July 2014, and January 2017. The examiner is then asked to answer the following questions: a. Does the Veteran have a current left knee disability? If so, given the evidence of record, has that left knee disability existed throughout the claims period, i.e. since October 2012? If not, has any other medically diagnosable left knee disability existed during the appellate period, whether or not that disability is currently diagnosed on examination? b. If a left knee disability is identified at any time during the appellate period, is it at least as likely as not (probability of 50 percent or greater) that the left knee disability is proximately due to or the result of a service-connected disability, specifically to include the Veteran's right knee and right hip disabilities? c. If a left knee disability is identified at any time during the appellate period, is it at least as likely as not (probability of 50 percent or greater) that the left knee disability has been aggravated (increased in severity or worsened, beyond the natural progress of disease or injury) by a service-connected disability? d. If aggravation is found, the examiner should identify: i. the baseline manifestations of the disorder prior to aggravation; ii. the increased manifestations which, in the examiner's opinion, result from aggravation by service-connected disability. A detailed rationale must be provided for any opinion expressed. If the examiner is unable to offer any requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the current limits of medical knowledge. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 2. Undertake any other development deemed warranted, then readjudicate the Veteran's claim. If the benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case, then return the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs