Citation Nr: 1805891 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 12-06 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to May 7, 2015, and in excess of 20 percent thereafter, for right knee arthrotomy with lateral meniscectomy (right knee disability). 2. Entitlement to an initial compensable rating for limitation of flexion of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2013, the Veteran testified before the undersigned at a Board hearing in Nashville, Tennessee. A transcript of that hearing has been associated with the virtual file and reviewed. This case was previously before the Board in October 2014 and May 2017, on which occasions it was remanded for further development. The May 2017 Remand directed the Agency of Original Jurisdiction (AOJ) to attempt to associate the contents of a compact disc (CD) received by VA in October 2014 with the virtual file. In May 2017, VA sent the Veteran a letter asking him to authorize VA to obtain the records contained in the October 2014 CD; however, the Veteran did not respond to this request. The Board notes that the duty to assist is not a one-way street; the Veteran has a duty to cooperate with VA and facilitate needed development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). By attempting to assist the Veteran, the AOJ substantially complied with the remand directives, and a further remand is not required in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). As the remaining requested development has been completed, no further action to ensure compliance with the remand directives is required. See id. The Veteran was initially assigned a 10 percent rating for his right knee disability under Diagnostic Code 5259 for a meniscal disorder. He requested an increased rating for his right knee; a June 2015 rating decision reassigned the right knee disability under Diagnostic Code 5261 for limitation of extension and assigned a 20 percent rating effective May 7, 2015. Although an increased rating was granted for a right knee disability, the issue remained in appellate status, as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The June 2015 rating decision also granted service connection for limitation of flexion of the right knee effective May 7, 2015, and assigned a noncompensable rating under Diagnostic Code 5260. FINDINGS OF FACT 1. The weight of the competent and probative evidence is against finding dislocation of the right knee with recurrent episodes of locking, pain, and effusion into the joint prior to May 7, 2015. 2. The weight of the competent and probative evidence is against finding limitation of extension of the right knee to 20 degrees or more as of May 7, 2015. 3. The weight of the competent and probative evidence is against finding limitation of flexion of the right knee to 45 degrees or less. 4. The weight of the competent and probative evidence is at least in equipoise as to whether the Veteran has a symptomatic right knee meniscal disorder as of May 7, 2015. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a right knee disability prior to May 7, 2015, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5259 (2017). 2. The criteria for a disability rating in excess of 20 percent for limitation of extension of the right knee as of May 7, 2015, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5261. 3. The criteria for an initial compensable rating for limitation of flexion of the right knee have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5260. 4. The criteria for a separate disability rating of 10 percent, but no higher, for a right knee meniscal disorder as of May 7, 2015, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA sent a letter to the Veteran in January 2010, prior to adjudication of his claim. Next, VA has a duty to assist the Veteran in the development of the claim, including assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). All available, identified medical records have been associated with the virtual file and considered. The Veteran was afforded relevant VA examinations in March 2010, May 2015, and May 2017. In light of the foregoing, the Board will proceed to the merits of the appeal. II. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are, however, 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, 510 (2007). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Standard motion of a knee joint is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 concerns limitation of leg flexion. A 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating is warranted where flexion is limited to 30 degrees; and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Diagnostic Code 5261 pertains to limitation of leg extension. A 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under Diagnostic Code 5258, a 20 percent rating is warranted where there is evidence of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, DC 5258. Symptomatic removal of semilunar cartilage warrants a 10 percent rating under Diagnostic Code 5259. 38 C.F.R. § 4.71a, DC 5259. Under Diagnostic Code 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; moderate knee or ankle disability warrants a 20 percent rating; and marked knee or ankle disability warrants a 30 percent rating. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion that requires a brace. 38 C.F.R. § 4.71a, DC 5262. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, a claimant who has both limitation of flexion and limitation of extension of the same leg may be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (Oct. 6, 2004). Additionally, a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (Oct. 22, 1998); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (Dec. 1, 1997); see also Lyles v. Shulkin, No. 16-0994, 2017 U.S. App. Vet. Claims LEXIS 1704 (Nov. 29, 2017). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45 (2017). The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59 (2017). The Board notes that 38 C.F.R. § 4.59, entitled "Painful motion," states, in pertinent part: "The intent of the 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." In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). As previously noted, prior to May 7, 2015, a 10 percent rating was assigned for a right knee meniscal disability under Diagnostic Code 5259. A June 2015 rating decision reassigned the right knee disability under Diagnostic Code 5261 for limitation of extension and assigned a 20 percent rating effective May 7, 2015. The June 2015 rating decision also granted service connection for limitation of flexion of the right knee effective May 7, 2015, and assigned a noncompensable rating under Diagnostic Code 5260. A. Prior to May 7, 2015 After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for a right knee disability prior to May 7, 2015. A September 2009 treatment record provides two measurements for range of motion. Affording the benefit of the doubt and utilizing the range of motion measurements most favorable to the Veteran, the September 2009 treatment record indicates flexion of the right knee to 120 degrees and extension of the right knee to five degrees. The physician noted an antalgic gait with pain on deep flexion, but no effusion or ligamentous instability. A February 2010 treatment note indicates a normal gait with no ligamentous instability. 08/30/2013, Medical-Non-Government, pp. 10, 13. In March 2010, a VA examiner found flexion of the right knee to 90 degrees and extension of the right knee to five degrees, with no objective evidence of painful motion, no additional limitation after three repetitions, and no ankylosis. The examiner acknowledged the Veteran's report of right knee pain and swelling and that the knee catches, but noted no deformity, instability, giving way, stiffness, weakness, incoordination, locking episodes, episodes of dislocation or subluxation, or effusion. The Veteran reported that he is able to stand between 15 and 30 minutes and that he experiences flare-ups every two to three months lasting a week in duration, during which he cannot bear weight. The examination indicated the presence of crepitus and tenderness, but noted a normal gait and no evidence of abnormal weight bearing, clicks or snaps, grinding, instability, patellar abnormality, meniscal abnormality, fracture, or effusion. The occupational effects of the right knee disability were noted as pain with prolonged walking, standing, and sitting, and the Veteran reported missing four weeks of work in the prior 12 months due to his right knee disability. 03/05/2010, VA Examination. The Board finds the March 2010 VA examination to be highly probative, as it is supported by an in-person examination and medical expertise and contains an adequate rationale. In July 2017, a VA examiner estimated that passive range of motion would be the same as active range of motion in the March 2010 VA examination, explaining that all knee examinations include passive range of motion even if not documented and abnormalities would have been documented. The examiner further stated that no neurological abnormalities were claimed or noted in the March 2010 VA examination. 07/27/2017, C&P Exam. The Board finds the July 2017 addendum to the March 2010 VA examination to be competent, credible, and probative, as it is supported by review of the relevant records and medical expertise and contains an adequate rationale. The Veteran reported that certain activities cause his knee to swell and the pain becomes unbearable, causing him to stay in bed for days at a time. He further stated that he can no longer participate in athletics or perform yardwork. 08/19/2010, Correspondence. In August 2013, the Veteran testified that his right knee symptoms had increased in frequency since the March 2010 VA examination and he reported experiencing pain, grinding, popping, locking, swelling, and instability with the right knee giving out at least once a week. He also reported occasional use of a knee brace. 12/22/2013 (Legacy), Hearing Transcript. The Board finds that a higher rating for a meniscal disorder under Diagnostic Code 5258 is not warranted because the competent and probative evidence weighs against finding dislocation with recurrent episodes of locking, pain, and effusion into the joint. See 38 C.F.R. § 4.71a, DC 5258. Again, the March 2010 VA examination indicated no episodes of dislocation. In September 2009, a private physician noted no evidence of effusion, and the March 2010 VA examiner found no evidence of locking episodes or effusion. The Board acknowledges the Veteran's reports of pain, swelling, grinding, popping, and locking, but finds that those symptoms are contemplated by his rating under Diagnostic Code 5259. The Board finds that separate ratings based on limitation of motion are not warranted prior to May 7, 2015, as the weight of the competent and probative evidence is against finding flexion limited to 45 degrees or less or extension limited to 10 degrees or more. See 38 C.F.R. § 4.71a, DCs 5260, 5261. In September 2009, a private physician found range of motion to be between five and 120 degrees, and the March 2010 VA examiner found range of motion to be between five and 90 degrees. The Board has considered the 38 C.F.R. §§ 4.40, 4.45, and 4.59, and Mitchell and DeLuca criteria, but finds that the competent and probative evidence weighs against finding weakened movement, excess fatigability, incoordination, and pain during flare-ups or over time resulting in flexion limited to 45 degrees or less or extension limited to 5 degrees or more. See 38 C.F.R. § 4.71a, DCs 5260, 5261. To the extent that range of motion is limited due to pain, the Board finds that a separate rating on this basis here would constitute impermissible pyramiding, as that functional impairment is contemplated by the 10 percent rating under Diagnostic Code 5259. See 38 C.F.R. §§ 4.14, 4.71a, DC 5259; Esteban, 6 Vet. App. at 262. The Board further finds that the Veteran is not entitled to a separate rating under another diagnostic code for his right knee disability. The weight of the competent and probative evidence is against finding ankylosis, recurrent subluxation or lateral instability, or tibial or fibular impairment prior to May 7, 2015. 03/05/2010, VA Examination; 08/30/2013, Medical-Non-Government; see 38 C.F.R. § 4.71a, DCs 5256, 5257, 5262. To the extent the Veteran reports instability of the right knee, the Board finds that the Veteran is competent to report his right knee giving way, but is not competent to diagnose lateral instability. Furthermore, the Board finds that the symptom of his knee giving way is contemplated by the 10 percent rating under Diagnostic Code 5259. All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive a higher and/or additional evaluation for his right knee disability based on the evidence. See 38 C.F.R. § 4.71a. The Board notes that the benefit of the doubt has been applied, where applicable. B. As of May 7, 2015 After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for limitation of extension or a compensable rating for limitation of flexion of the right knee as of May 7, 2015. However, the Board finds that the competent and probative evidence is at least in equipoise as to whether there is a symptomatic meniscal disorder of the right knee as of May, 7, 2015, thus warranting a separate 10 percent rating under Diagnostic Code 5259. See 38 C.F.R. § 4.71a. On May 7, 2015, a VA examiner found right knee flexion to 55 degrees and extension to 15 degrees, with pain noted on flexion but not resulting in functional loss. The examiner found no additional functional loss or limitation of range of motion after three repetitions, and that pain, fatigue, instability, and weakness do not significantly limit functional ability with repeated use over time. The Veteran reported daily pain, with increased pain after prolonged standing or walking, but denied flare-ups. The examiner noted anterior and posterior instability, but no medial or lateral instability was shown. The examination indicated a history of recurrent effusion, but no history of recurrent subluxation, lateral instability, recurrent patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. An examination revealed full muscle strength with no atrophy. The Veteran reported that he occasionally has to miss work due to knee pain and that he is unable to squat on the right knee, but denied the use of an assistive device. 05/07/2015, C&P Exam. A May 2017 VA examiner found right knee flexion to 90 degrees and extension to zero degrees, with pain noted on flexion resulting in functional loss. Pain was elicited at the end point of range of motion in all testing. The examiner found no additional functional loss or limitation of range of motion after three repetitions, and that pain, fatigue, instability, and weakness do not significantly limit functional ability with repeated use over time. The Veteran reported daily knee pain with increased pain after prolonged walking, standing, or driving, but denied experiencing flare-ups. An examination revealed full muscle strength with no atrophy. The examiner noted no history of recurrent subluxation, lateral instability, recurrent effusion, recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examiner found no evidence of joint instability. The Veteran denied use of an assistive device. 05/30/2017, C&P Exam; 07/27/2017, C&P Exam. A July 2017 addendum to the May 2017 VA examination indicates that no neurological abnormalities were claimed or noted in the May 2015 or May 2017 VA examinations. The addendum further notes the functional impact of the Veteran's right knee disability on his ordinary activities is pain with prolonged standing, driving, and walking. 07/27/2017, C&P Exam. The Board finds the May 2015 and May 2017 VA examinations to be highly probative, as they are supported by in-person examinations and medical expertise and contain adequate rationales. Accordingly, the Board finds that higher ratings based on limitation of the right knee are not warranted, as the weight of the competent and probative evidence is against finding flexion limited to 45 degrees or less or extension limited to 20 degrees or more. 05/07/2015, C&P Exam; 05/30/2017, C&P Exam; see 38 C.F.R. § 4.71a, DCs 5260, 5261. The Board has considered the 38 C.F.R. §§ 4.40, 4.45, and 4.59, and Mitchell and DeLuca criteria, but finds that the competent and probative evidence weighs against finding weakened movement, excess fatigability, incoordination, and pain during flare-ups or over time resulting in flexion limited to 45 degrees or less, or extension limited to 20 degrees or more. See 38 C.F.R. § 4.71a, DCs 5260, 5261. In other words, the Board finds that the Veteran's right knee disability does not more closely approximate the criteria for a 30 percent rating based on limitation of extension or a compensable rating based on limitation of flexion. To the extent that range of motion is limited due to pain, the Board finds that assigning an increased rating on this basis would constitute impermissible pyramiding, as that functional impairment is contemplated by the separate 10 percent rating under Diagnostic Code 5259, assigned herein. See 38 C.F.R. §§ 4.14, 4.71a, DC 5259; Esteban, 6 Vet. App. at 262. The Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran experiences symptoms, such as effusion, associated with a right knee meniscal condition not otherwise contemplated by the ratings under Diagnostic Code 5260 and 5261 for limitation of motion. Accordingly, the evidence warrants assignment of a separate 10 percent rating under Diagnostic Code 5259 for a symptomatic right knee meniscal disorder as of May 7, 2015. The Board finds that a higher rating for a meniscal disorder under Diagnostic Code 5258 is not warranted because the competent and probative evidence weighs against finding dislocation with recurrent episodes of locking, pain, and effusion into the joint. See 38 C.F.R. § 4.71a, DC 5258. The May 2015 and May 2017 VA examinations indicated no history of recurrent patellar dislocation. The Board acknowledges the Veteran's reports of knee pain and the finding of a history of recurrent effusion contained in the May 2015 VA examination, but finds that the right knee disability does not more closely approximate the criteria for patellar dislocation under Diagnostic Code 5258. See 38 C.F.R. § 4.71a, DC 5258. The Board finds that the Veteran is not entitled to a separate rating under another diagnostic code for his right knee disability. The weight of the competent and probative evidence is against finding ankylosis, recurrent subluxation or lateral instability, or tibial or fibular impairment as of May 7, 2015. 05/07/2015, C&P Exam; 05/30/2017, C&P Exam see 38 C.F.R. § 4.71a, DCs 5256, 5257, 5262. All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive a higher and/or additional evaluation for his right knee disability based on the evidence. See 38 C.F.R. § 4.71a. The Board notes that the benefit of the doubt has been applied, where applicable. (CONTINUED ON NEXT PAGE) ORDER A disability rating in excess of 10 percent for a right knee disability prior to May 7, 2015, is denied. A disability rating in excess of 20 percent based on limitation of extension of the right knee as of May 7, 2015, is denied. An initial compensable rating based on limitation of flexion of the right knee is denied. A separate rating of 10 percent, but no higher, for a right knee meniscal disorder as of May 7, 2015, is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs