Citation Nr: 18143358 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-24 029 DATE: October 18, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for left knee degenerative joint disease is dismissed. Entitlement to an initial disability rating in excess of 10 percent for residuals of right patellar fracture prior to May 23, 2016 is denied. Entitlement to a compensable initial disability rating for residual scar status post right patellar fracture is denied. REMANDED Entitlement to a disability rating in excess of 30 percent for total right knee replacement from January 1, 2019 is remanded. FINDINGS OF FACT 1. In June 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran’s representative that he wished to withdraw his claim for entitlement to an initial disability rating in excess of 10 percent for left knee degenerative joint disease. 2. Prior to May 23, 2016, the Veteran’s residuals of right patellar fracture did not manifest in flexion limited to 30 degrees, extension limited to 15 degrees, recurrent subluxation or lateral instability, a meniscus condition with frequent episodes of “locking,” pain, and effusion, impairment of the tibia and fibula, genu recurvatum, or ankylosis. 3. The Veteran’s residuals scar status post right patellar fracture was not manifested by pain, was not unstable, nonlinear, or deep, and measured no longer than 24 centimeters. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to an initial disability rating in excess of 10 percent for left knee degenerative joint disease by the appellant have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for a disability rating in excess of 10 percent for residuals of right patella fracture have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260 (2017). 3. The criteria for a compensable initial disability rating for surgical scars residuals scar status post right patellar fracture are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to February 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June and July 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A July 2016 rating decision granted a temporary 100 percent disability rating for a total right knee replacement effective May 23, 2016. An October 2018 rating decision assigned a 30 percent rating, effective January 1, 2019 consistent with Diagnostic Code 5055. The Board's consideration of the claims for higher ratings for the Veteran's service-connected right knee disability, both before and after his knee replacement excludes the time period for which a temporary total rating was in effect. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants 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 (2017). 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). Dismissal 1. Entitlement to an initial disability rating in excess of 10 percent for left knee degenerative joint disease The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. Id. In June 2018, the Veteran’s representative submitted a statement stating that the Veteran wished to withdraw his claim for entitlement to an initial disability rating in excess of 10 percent for left knee degenerative joint disease. Thus, there remain no allegations of errors or fact or law for appellate consideration on this issue. Accordingly, the Board does not have jurisdiction to review this claim and it is dismissed. Increased Rating 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. Otherwise the lower rating will be assigned. 38 C.F.R. 4.7. The veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, (2007). 2. Entitlement to an initial disability rating in excess of 10 percent for residuals of right patellar fracture prior to May 23, 2016 The Veteran’s residuals of right patella fracture has been evaluated as 10 percent disabling from February 1, 2012 to May 23, 2016 under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5260. 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. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2017). Diagnostic Code 5010 represents arthritis due to trauma, substantiated by x-ray findings, which in turn is to be rated under Diagnostic Code 5003 as degenerative arthritis. 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation 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. Id., Diagnostic Code 5003 (2017). Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Code 5260, which contemplates limitation of leg flexion, a 0 percent rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5260. Under Code 5261, which contemplates limitation of extension of the leg, a 0 percent rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. Diagnostic Code 5257 rates on the basis of recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). Slight recurrent subluxation or lateral instability of the knee is rated as 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated as 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated as a maximum 30 percent disabling. Id. The Board observes that the words “slight,” “moderate,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2017). Use of terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2017). Diagnostic Code 5258 provides for a 20 percent evaluation on the basis of dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2017). This is the only available evaluation under Diagnostic Code 5258. A 10 percent evaluation is warranted for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. This is the only available evaluation under Diagnostic Code 5259. The Veteran underwent an April 2012 VA examination for his right knee. He reported increasing pain, especially over the last two to three years, and that his was starting to give way over the last year. He reported no flare-ups. Range of motion testing revealed right flexion at 100 degrees, flexion at 90 degrees with pain, and full extension. No additional functional loss upon repetitive use testing was found. The examiner found that the Veteran had functional loss and/or impairment of the right knee, to include less movement than normal and pain on movement. Tenderness or pain to palpation in the right knee was noted. No objective evidence of decreased muscle strength, instability, or recurrent patellar subluxation/dislocation was noted. Ankylosis and a meniscal condition were not noted. Although the examination report did not contain the results of the passive and non-weight-bearing ranges of motion, the examination is adequate to decide the claim. The diagnostic criteria for orthopedic conditions do not require the results of passive range of motion testing and do not discern between weight-bearing and non-weight-bearing, and do not consider range of motion of the opposite joint (if undamaged). The rating criteria for orthopedic conditions require consideration of ranges of motion, where applicable, and functional loss as set forth in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). This information is provided in the April 2012 VA examination. VA treatment records from February 2012 to July 2012 show that the Veteran had full range of motion in both knees. He reported knee pain, with pain and stiffness worse with activity and in the morning. The Veteran had a right knee scar and tenderness to palpation in the right knee. He had difficulty walking and standing. The Veteran underwent an July 2012 VA examination for his left knee. Range of motion testing was not conducted on the right knee. VA treatment records from May 2014 to March 2016 show that the Veteran had right knee pain. In a May 2014 physical therapy consult note, the Veteran reported that both knees buckled, which was becoming more frequent, and complained of buckling, pain, and discomfort on meniscal testing. Active range of motion testing revealed flexion to 100 degrees and extension to 11 degrees. Passive range of motion testing revealed flexion to 106 degrees and extension to 9 degrees. The physical therapist found potential meniscal involvement and an x-ray revealed small joint effusion. According to a September 2015 VA treatment record, the Veteran had right knee pain, periodic swelling, frequent crepitus, recurrent episodes of momentary giving, and periodic catching. Upon examination, the Veteran had no effusion, no instability, and joint line tenderness. Active range of motion testing revealed flexion to 80 degrees with pain and extension to 10 degrees with pain. According to a December 2015 VA treatment record, the Veteran had effusion in the right knee. Active range of motion testing revealed flexion to 80 degrees with crepitus and pain and extension to 10 degrees with crepitus and pain. In a June 2018 statement, the Veteran’s representative asserted that the Veteran’s right knee disability warranted a 20 percent disability rating prior to May 23, 2016 due to symptoms of locking and effusion due to a dislocated cartilage, and instability. Considering the foregoing, the Board finds that a rating of 10 percent for the Veteran’s residuals of a right patella fracture is the highest rating warranted for consideration of any limitation of motion, even considering functional loss due to pain and other factors. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran’s residuals of a right patella fracture have shown range of motion limited to, at worst, to the minimal compensable standard throughout the period on appeal. The Veteran’s VA examinations and VA treatment records show that the Veteran’s flexion at worst was to 80 degrees and his extension at worst was to 11 degrees. Based on those findings, the Veteran’s limitation of range of motion was at minimal levels, with flexion at noncompensable degrees and extension at minimally compensable degrees throughout the period on appeal. Furthermore, the Veteran was able to perform repetitive testing without additional loss of function or range of motion in his VA examinations. The Board notes that the Veteran’s award of a 10 percent rating for his limitation of flexion and knee pain under Diagnostic Code 5010-5260 was based on his subjective evidence of pain, degenerative arthritis, painful motion and limitation of flexion of his right knee along with X-ray evidence of arthritis. Even considering the Veteran’s complaints of pain, the Board finds that the severity of the Veteran’s residuals of right patellar fracture does not more nearly approximate a higher rating. As such, a rating in excess of 10 percent is not warranted as the Veteran does not have symptoms which would support such a finding. Other than the Veteran’s painful motion and use, there is no objective symptomology or limitation which would warrant a rating in excess of 10 percent for his right knee throughout the period on appeal. While the Board is aware of and sympathetic to the Veteran’s complaints of pain and stiffness, those symptoms are not shown by competent, objective evidence to be so disabling as to warrant the next higher 20 percent rating for limitation of flexion or extension under Diagnostic Codes 5260 or 5261. In this case, there is no objective, quantifiable evidence of additional range of motion loss due to pain on use, as alleged by the Veteran, that would equate to functional limitation to the extent that a higher rating was warranted under Diagnostic Code 5260 or Diagnostic Code 5261. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). With regard to whether the Veteran is entitled to a rating higher than 10 percent under Diagnostic Code 5003 for arthritis, the Board concludes that he is not. Under DC 5003, a 20 percent rating is not warranted unless X-ray evidence shows involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. The knee is considered a major joint. 38 C.F.R. § 4.45. Further, the evidence does not show that the Veteran’s right knee disability has occasional incapacitating exacerbations. Accordingly, the Board finds that the Veteran is not entitled to a rating greater than the current 10 percent rating under that diagnostic code. That remains the highest rating warranted even considering functional loss due to pain and other factors. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds the April 2012 VA examiner’s medical opinion highly probative to the issue of the severity of the Veteran’s right knee disability. Specifically, the examiner interviewed the Veteran and conducted a physical examination. Moreover, the examiner had the requisite medical expertise and had sufficient facts and data on which to base his conclusions. As such, the Board accords the VA examination opinion great probative weight. Additionally, the Board has considered the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017), addressing 38 C.F.R. § 4.40. In this case, the Board finds that Sharp is inapplicable as the evidence of record does not show that the Veteran has flare-ups of his right knee disability. The Board has also considered if any other ratings are appropriate under any other Diagnostic Code. However, the medical evidence of record, including the VA examination of record, establish that the Veteran does not have ankylosis, impairment of the tibia and fibula, or genu recurvatum, so a rating under Diagnostic Codes 5256, 5262, or 5263 is not warranted. While the Veteran reports having instability in the right knee, the objective, clinical evidence does not show that the Veteran has any recurrent subluxation or lateral instability which would warrant a rating pursuant to Diagnostic Code 5257. Finally, though a May 2014 VA treatment record notes potential meniscal involvement, the objective, clinical evidence does not show that the Veteran had a meniscus condition or a meniscectomy prior to May 23, 2016. Further, the record does not show that the Veteran had frequent episodes of “locking,” pain, and effusion as a result of semilunar cartilage dislocation or removal. Thus, a rating under Diagnostic Codes 5258 or 5259 is not warranted. Accordingly, the Board finds that the preponderance of the evidence weighs against a disability rating in excess of 10 percent prior to May 23, 2016 for the Veteran’s residuals of right patella fracture. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a compensable initial disability rating for residual scar status post right patellar fracture The Veteran’s residual scar status post right patellar fracture has been currently evaluated as noncompensable, effective February 1, 2012, under 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800 through 7804 should be evaluated under an appropriate diagnostic code. Pursuant to Diagnostic Code 7804 for rating scars that are unstable or painful, a 10 percent rating is assigned for one or two scars that are unstable or painful, a 20 percent rating is assigned for three or more scars that are unstable or painful, and a 30 percent rating is assigned for five or more scars that are unstable or painful. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. 38 C.F.R. § 4.118. Diagnostic Code 7800 specifically applies to scars of the head, face, and neck. Diagnostic Code 7801 governs scars involving areas other than the head, face, or neck that are deep and nonlinear and provides for a 10 percent evaluation when the area or areas exceed six sq. inches (39 sq. cm.). A 20 percent evaluation is assigned when the area or areas exceed 12 sq. inches (77 sq. cm.). Note (1) provides that a deep scar is one associated with underlying soft tissue damage. Diagnostic Code 7802 applies to burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear. Under this provision, a maximum schedular evaluation of 10 percent is warranted for scars with an area or areas of 144 sq. inches (929 sq. cm.) or greater. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. Scars are evaluated based on their location, size, appearance, and associated functional limitations. 38 C.F.R. § 4.118, Diagnostic Codes 7800 – 7805. The Veteran’s scar is currently rated under Diagnostic Code 7805, which provides that scars and their manifestations not falling under one of the scar-specific Diagnostic Codes should be rated under some other appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805. In other words, the functional impact should be rated. VA treatment records from March 2012 to May 2017 note a right knee scar, but do not note any symptomatology or functional impairment due to the right knee scar. In fact, September 2016 and May 2017 VA treatment records state that the anterior scar is benign. In an August 2016 VA examination for scars, the examiner found that the Veteran had one scar on his right knee. It was found to be linear and not painful, unstable, or due to burns. The examiner found that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms associated with his right knee scar. The scar measured 24 centimeters long and was noted to be well-healed. The scar did not result in occupational impairment. In a June 2017 VA examination for the knee, the examiner found that the Veteran had a scar related to his right knee disability. It was found that objective evidence did not show that the scar was painful, unstable, located on the head, face, or neck, or had a total area equal to or greater than 39 square centimeters. Considering the foregoing, the Board finds that a compensable disability rating is not warranted for the Veteran’s residual scar status post right patellar fracture. The evidence of record does not show that the Veteran’s right knee scar was painful or unstable. The scar measured 24 centimeters in length and did not result in physical findings, complications, conditions, signs, or symptoms, or occupational impairment. VA treatment records do not show complaints of his scar being painful, unstable, deep, or nonlinear. In fact, September 2016 and May 2017 VA treatment records describe the scar as benign. Therefore, the provisions of Diagnostic Codes 7800, 7801, 7802, and 7804 are inapplicable. Finally, as there is also no evidence of record that the Veteran had any disabling effects from his right knee scar, a compensable rating under Diagnostic Code 7805 is also unwarranted. Accordingly, the Board finds that the preponderance of the evidence weighs against an initial compensable disability rating for the Veteran’s residual scar status post right patella fracture. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 30 percent for total right knee replacement from January 1, 2019 is remanded. In an October 2018 rating decision, the Veteran’s total right knee replacement, which is currently evaluated as 100 percent disabling, was assigned a 30 percent disability rating, effective January 1, 2019. Therefore, any decision as to the severity of the Veteran’s right knee disability at the future date of January 1, 2019 would be premature. Accordingly, a remand for a VA examination to address the Veteran’s total right knee replacement disability after January 1, 2019 is warranted. The matter is REMANDED for the following action: Schedule the Veteran for an examination of the severity of his total right knee replacement disability after January 1, 2019. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his right knee disability alone and discuss the effect of the Veteran’s right knee disability on any occupational functioning and activities of daily living. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his knee symptoms and/or after repeated use over time. (Continued on the next page)   Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ko, Associate Counsel