Citation Nr: 1802436 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-15 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a disability rating in excess of 10 percent for right knee strain with chondromalacia and scars from October 30, 2013. ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy Reserves from April 2002 to August 2004, the U.S. Air Force Reserves from August 2004 to August 2007, the Georgia Army National Guard from August 2007 to May 2014, and the National Guard from February to May 2014. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In December 2015, 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 her right knee, particularly to assess her condition since October 30, 2013, as the record suggested changes in the severity and manifestations of the Veteran's right knee condition following surgery for her right knee in October 2013. Since the remand, the Veteran underwent a new VA examination in April 2016. Thus, the Board determines that there has been substantial compliance with the remand directives, and 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). In the December 2015 decision, the Board denied an initial rating of 10 percent for the Veteran's right knee strain with chondromalacia and scars prior to June 10, 2013, and granted a rating of 20 percent from June 10, 2013, through October 29, 2013. The Veteran did not appeal those aspects of the decision. Thus, that part of the December 2015 decision is final and those assigned ratings prior to October 30, 2013 are not before the Board at this time. The only rating period under consideration in this decision begins on October 30, 2013. FINDING OF FACT During the appeal period, the Veteran's right knee strain with chondromalacia and scars manifested in locking, recurrent effusion and pain, but not flexion limited to 45 degrees, extension limited to 10 degrees, no total knee replacement, no ankylosis, or tibia or fibular impairment, and no functional loss beyond limitations caused by pain. CONCLUSION OF LAW The criteria for a 20 percent disability rating for the Veteran's right knee strain with chondromalacia and scars and painful motion from October 30, 2013, 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, 4.59, 4.71a, Diagnostic Codes 5258, 5259, 5260, 5261 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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. §§ 5103, 5103A and 38 C.F.R. § 3.159. For the issue decided herein, VA provided adequate notice in a letter sent to the Veteran in September 2010. 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 October 2013 and April 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). Each examiner 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). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). 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 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 Evidence The Veteran contends that her service-connected right knee disability is more disabling than the rating assigned. As noted in the Introduction, the period on appeal is from October 30, 2013. The relevant medical evidence of record during the appeal period includes VA examinations and private treatment reports, which the Board will discuss chronologically. In October 2013, the Veteran underwent a VA examination for her right knee, which specifically addressed criteria relevant to rating the Veteran's right knee disability. The VA examiner indicated diagnoses of arthroscopic surgery of the right knee in 2013, chondromalacia, and right knee strain. The Disability Benefits Questionnaire (DBQ) reflects the Veteran's reports that she cannot do activities she used to do, had to quit her job as a postal worker because of her knee, and cannot drive for long periods of time. The DBQ also reflects her complaints of pain, swelling, and bruising. She indicated that her knee gives out when walking. The examiner indicated that a MRI showed possible meniscus tear, chondromalacia, and patella possibly out of alignment. The examiner also indicated that the Veteran reported flare-ups. Physical examination of the right knee indicated initial range of motion with flexion of 140 degrees or greater, and the examiner indicated there was objective evidence of painful motion at 100 degrees. The Veteran's extension measured at 0 degrees, and the examiner indicated there was objective evidence of painful motion at 5 degrees. The examiner indicated that the Veteran was able to perform repetitive use testing with three repetitions. Range of motion following repetitive use measured at flexion of 140 degrees and extension of 0 degrees. The examiner indicated there was no additional limitation in range of motion of the right knee and lower leg following repetitive use testing. The examiner indicated that the Veteran has functional loss and/or functional impairment of the right knee and lower leg; the examiner specified pain on movement and small mobile nodule seperpatella region measuring 2cm x 1cm. The examiner indicated that the Veteran has tenderness or pain to palpation for the joint line or soft tissues of the right knee. Muscle strength testing was all normal. Joint stability tests were normal except the examiner indicated 0-5 mm medial-lateral instability for the right knee. The examiner indicated there was no patellar subluxation/dislocation. The examiner indicated the Veteran did not at the time and had never had "shin splints" (medial tibia stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibia and/or fibular impairment. The examiner indicated there were no meniscal conditions or surgical procedures for a meniscal condition and no total knee joint replacement. The examiner noted that there had been arthroscopic surgery of the right knee per the Veteran's reports. The examiner indicated there were no residual signs and/or symptoms due to arthroscopic or other knee surgery. The examiner noted that the Veteran has scars (surgical or otherwise) related to her right knee condition or treatment. The examiner indicated that the scars were not painful and/or unstable and that the total area of all related scars was not greater than 39 square cm (6 square inches). The examiner indicated there was no use of an assistive device and no other pertinent physical findings or complications. A December 2013 physical therapy consult from Atlanta VA Medical Center (VAMC) indicates that the Veteran's pre-op right knee symptoms were locking, giving out when going up and down steps, and swelling with long distance walking. The report indicates that the Veteran's post-op symptoms were pain going down stairs. The note indicates that x-ray showed range of motion from 0 to 110 degrees, near full strength, and no laxity. The Board notes that various other treatment reports of record indicate complaints of knee pain, the Veteran's arthroscopic surgery of the right knee, and her complaints of swelling, locking, and giving out. As the private treatment reports do not provide additional information relevant to rating criteria, the Board will not discuss them in further detail. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but need not discuss each piece of evidence. In April 2016, the Veteran underwent another VA examination for her right knee. The examiner noted the diagnosis for chondromalacia and previous arthroscopic surgery. The examiner also indicated an associated diagnosis of patellofemoral pain syndrome. The examiner noted that the Veteran currently had swelling, giving out, and charley horses as well as pain located to the medial and inferior aspect of the right patella. The examiner indicated that the Veteran did not report flare-ups of the knee and/or lower leg. The Veteran did report having functional loss or functional impairment, for which the examiner specified that the Veteran cannot do prolonged standing or walking. Physical examination of the Veteran's right knee indicated an abnormal, outside normal range. Her initial range of motion was indicated to be flexion of 0 to 90 degrees and extension of 140 to 0 degrees. The examiner indicated that range of motion itself contributes to functional loss, which the examiner described as the Veteran being unable to do prolonged standing or walking. The examiner indicated that pain starts at 45 degrees of flexion. The examiner indicated there was no evidence of pain with weight bearing, no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, and no 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 being examined immediately after repetitive use over time. The examiner indicated that pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time. No response was provided as to flare ups; the Board notes that the DBQ indicates that the Veteran did not report flare-ups to the examiner. The examiner indicated that there were no additional factors contributing to the Veteran's right knee disability. Muscle strength testing was all normal. The examiner indicated there was no muscle atrophy or ankyloses and no history of recurrent subluxation or lateral instability. The examiner indicated there was a history of recurrent effusion and explained that the Veteran brought in pictures of her swollen knee. Joint stability tests were performed and indicated that there is no joint instability. The examiner indicated that the Veteran did not at the time and had never had recurrent patellar dislocation, "shin splints," stress fractures, chronic exertional compartment syndrome or any other tibia and/or fibular impairment. The examiner indicated that the Veteran does not have any meniscal conditions. The examiner noted 2011 and 2013 surgery for chondromalacia and removal of loose residual of the right knee. The examiner indicated that the Veteran had residuals of the surgery of pain and swelling in the right knee. The examiner indicated there were no other pertinent physical findings, complications, conditions, signs or symptoms related to any right knee condition. The examiner indicated that the Veteran has scars (surgical or otherwise) related to her right knee condition. The examiner indicated that the scars are not painful or unstable, do not have a total area equal to or greater than 39 square cm (6 square inches), and are not located on the Veteran's head, face, or neck. As to location and measurements of the scar, the examiner indicated arthroscopic scar around the right knee measuring 0.5cm x 0.5cm in length and width. The examiner indicated use of a brace as an assistive device. As to lay statements, in a September 2010 statement in support of claim, the Veteran indicated that her knee pain has disabled her from doing things she used to do before she got hurt. She indicated that she cannot run or stand for long periods of time and that it is hard for her to go up steps. She indicated that she cannot play sports and that it is getting hard to just walk without pain. In her December 2011 notice of disagreement, the Veteran stated that she feels VA did not look at her knee as a whole. She stated that she cannot do activities, her physical training test, or just walk or stand for a long period of time. She stated that her knee constantly locks up and that she has a hard time going up and down steps since she cannot bend when she lifts. Merits Having reviewed the record, to include medical and lay evidence, the Board finds that a 20 percent rating is warranted for the Veteran's right knee strain with chondromalacia and scars from October 30, 2013. The Veteran's right knee condition has been assigned a 10 percent rating for functional loss due to painful motion pursuant to 38 C.F.R. § 4.59, which, as discussed, allows for the lowest compensable rating available for limitation of motion for a joint if there is acknowledged painful motion that does not meet the criteria for a compensable level of limited motion. After consideration of the evidence, the Board finds that the more appropriate rating provision to evaluate the Veteran's right knee strain is Diagnostic Code 5258. Under this provision, pain, swelling/effusion, and locking of the knee due to meniscal dislocation warrants a 20 percent evaluation. The evidence is somewhat contradictory as to whether the Veteran has a meniscal condition, but giving the Veteran the benefit of the doubt, the Board finds she does have evidence of a meniscal condition, and regardless, has symptoms that equate to the criteria in Diagnostic Code 5258. The record shows that she has consistently demonstrated locking, swelling and pain in her right knee from October 30, 2013 forward. Thus, the Board finds that her right knee condition is properly evaluated under this Diagnostic Code, and a 20 percent rating is warranted. A separate rating under Diagnostic Code 5259 is not appropriate as this provision provides a 10 percent rating for symptomatic meniscal conditions, and the Veteran's symptoms are being compensated under Diagnostic Code 5258, thus, it would be prohibited pyramiding to compensate them again under this provision. The same is true of the10 percent previously assigned for painful motion pursuant to 38 C.F.R. § 4.59, as her painful motion is now compensated as part of the 20 percent evaluation assigned under Diagnostic Code 5258, a separate 10 percent rating for painful motion is not appropriate. Additionally, compensation under Diagnostic Codes 5260 and 5261 governing limitation of flexion and extension are not warranted. At no time during the relevant appeal period has the Veteran's right knee demonstrated compensable limitation of motion, even when considering limitation due to pain. To receive a rating higher than the lowest compensable rating, the Veteran must have flexion limited to 30 degrees or extension limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. In this case, the probative evidence reflects that during the period on appeal, the Veteran's most limited flexion of the right knee was 90 degrees, with pain at 45 degrees, and her most limited extension of the right knee was 140 degrees. See April 2016 VA examination. With regard to additional compensation for functional loss, the Board acknowledges the Veteran's reports that her right knee condition causes pain and weakens her ability to stand or walk for prolonged periods. However, the Board finds that these limits are compensated in the assigned 20 percent rating, which includes consideration of the impact of her pain on her ability to function. Further, physical examination of the Veteran consistently indicated no additional limitation of motion due to pain, weakness, fatigability, or incoordination. The Board also acknowledges the Veteran's assertion that VA did not look at her right knee as a whole. The Board notes that since this assertion in her December 2011 notice of disagreement, the Veteran has undergone two VA examinations, in which the examiners reviewed the record, physically examined the Veteran, and considered her history and lay statements. As to other diagnostic codes for the knee and leg, the probative evidence consistently indicates that the Veteran has not had total knee replacement and that there is no ankylosis of the right knee. Nor has the Veteran alleged such. Therefore, Diagnostic Codes 5055 and 5256 are not for application. 38 C.F.R. § 4.71a. The probative evidence also consistently indicates that the Veteran does not have any tibia and/or fibular impairment. As such, Diagnostic Code 5262 is not for application. Id. While the record reflects that the Veteran has scars associated with her right knee surgery, the record is also consistent that these scars are neither painful nor unstable. Nor has the Veteran alleged such. Thus, Diagnostic Codes 7800-7805 for scars are not applicable. 38 C.F.R. § 4.118 (2017). The Board notes that the Veteran is already service-connected for instability of her right knee under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and that this rating is not on appeal. Consideration has also been given to assigning staged ratings. Fenderson v. West, 12 Vet. App. at 119. Essentially, the Veteran's symptoms for her right knee strain with chondromalacia and scars have been consistent over the appeal period. Thus, there is no basis for assigning staged ratings. 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 20 percent, but no higher, is warranted for the Veteran's right knee strain with chondromalacia and scars from October 30, 2013. ORDER Entitlement to a 20 percent disability rating for right knee strain with chondromalacia and scars from October 30, 2013, is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs