Citation Nr: 18150001 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 11-24 218 DATE: November 14, 2018 ORDER Entitlement to an increased disability rating in excess of 10 percent prior to May 2, 2014 for left-knee disability, to include whether a separate rating is warranted for instability, is granted only to the extent of a separate disability rating of 10 percent for instability from November 9, 2010, and is otherwise denied. FINDINGS OF FACT 1. At no time prior to May 2, 2014 did the Veteran’s left-knee disability exhibit limitation of flexion to less than 45 degrees and/or limitation of extension limited to 10 degrees or more. 2. The evidence shows that the Veteran’s left-knee disability exhibited no more than slight instability from November 9, 2010 and warrants a separate disability rating of 10 percent under Diagnostic Code 5257. CONCLUSIONS OF LAW 1. The criteria for a separate disability rating for instability of 10 percent from November 9, 2010 for left-knee disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria for an increased disability rating in excess of 10 percent prior to May 2, 2014 for left-knee disability, other than a separate rating for instability, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5257, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training in the United States Army National Guard from January 1976 to July 1976, with other National Guard service from September 1975 to January 1976 and from July 1976 to September 1981. This matter was most recently before the Board in December 2016, when the Board denied the Veteran’s claim. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which found, in an April 2018 Memorandum Decision, that the Board had failed to address a November 2010 private treatment record for the Veteran’s left knee which had noted instability of the medial collateral ligament. As this presented the possibility of a separate disability rating for instability under Diagnostic Code 5257, the Court vacated that portion of the Board’s decision denying an increased disability rating in excess of 10 percent for left-knee disorder from October 1, 2010 to May 1, 2014 and remanded the issue for re-adjudication. Entitlement to an initial rating in excess of 10 percent from October 1, 2010 to May 1, 2014 for left-knee disability, to include whether a separate rating is warranted for instability. Increased Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran’s entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evidence to be considered in an appeal from an initial disability rating is not limited to current severity, but will include the entire period of the disorder. Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126–27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additional reference to the Veteran’s left knee is presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s left knee that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision The Veteran’s left knee is evaluated as 10 percent disabling under DC 5260 prior to May 2, 2014. In November 2010, the Veteran underwent a private treatment knee examination by Dr. W.J.H., who, on physical examination, found left-knee swelling, effusion, deformity, abnormal alignment, bony tenderness, abnormal meniscus and medial collateral ligament laxity. He further found the Veteran exhibited normal range of motion, no ecchymosis (discoloration from bruising), no laceration, no erythema (reddening of skin from injury), no lateral collateral ligament laxity, normal patellar mobility, and tenderness. Although Dr. W.J.H. found medial joint line tenderness, he found no tenderness in the lateral joint line, the medial collateral ligament, the lateral collateral ligament, or the patellar tendon. In examining the Veteran’s legs, Dr. W.J.H. found 20 degrees of varus malalignment (an inward turning) of the knee and instability of the medial collateral ligament, with valgus (outward “bowing”) stressing of the knee. He noted that x-rays revealed bone-on-bone contact in the medial compartment of the knee. Dr. W.J.H. assessed the Veteran with osteoarthritis and pain of the (left) knee. He added that the Veteran would be a candidate for a hemi-arthroplasty, as “[h]e is only painful medially and, clinically, his [anterior cruciate ligament] is intact.” As Dr. W.J.H.’s assessment included pain, the Board will assume this is pain upon some kind of motion. As such and as the Veteran has been rated already under Diagnostic Code 5260, the Board will look to Diagnostic Code 5260, as well as to Diagnostic Code 5261. Furthermore, as the Veteran reported a feeling of instability when walking, evaluation under Diagnostic Code 5257 is necessary. Under Diagnostic Code 5260 for limitation of flexion of the leg, a 0 percent rating is assigned when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. Under Diagnostic Code 5261 for limitation of extension of the leg, a 0 percent rating is assigned for a limitation of extension of the leg to 5 degrees. When extension is limited to 10 degrees, a 10 percent rating is assigned. In addition, under Diagnostic Code 5257, a 10 percent rating is assigned for slight recurrent subluxation or lateral instability. Dr. W.J.H.’s November 2010 examination report contains no findings showing a limitation of flexion of the leg of less than 45 degrees and a limitation of extension of more than 10 degrees. However, among Dr. W.J.H.’s pertinent findings is instability of the medial collateral ligament. Dr. W.J.H. does not state the magnitude or effects of the instability; it is mentioned only once and it is set forth among other various findings. As such, the Board concludes if Dr. W.J.H. were further concerned with this finding, he would have addressed it with greater detail. As it is, he states it concerns the medial collateral ligament only and further observes concerning the possibility of a hemiarthroplasty that the Veteran’s anterior cruciate ligament is in fact intact. From Dr. W.J.H.’s findings then the Board further concludes that the instability is “slight,” within the meaning of Diagnostic Code 5257. Therefore, based on the findings made in the November 2010 private treatment examination, the Board finds the Veteran’s left-knee disorder did not exhibit limitation of flexion less than 45 degrees and limitation of extension more than 10 degrees. Based on the medical evidence and resolving all doubt in favor of the Veteran, the Board further finds the Veteran’s left-knee disability exhibited slight instability from November 9, 2010, the date of Dr. W.J.H.’s examination. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Based upon the evidence in this case, the earliest that that it can be factually ascertained that the Veteran met the criteria for a separate rating for instability is the date of the examination. In December 2010, the Veteran presented for a QTC examination of both knees. The December 2010 examiner found that, although the Veteran’s posture is normal, he exhibited an abnormal gait due to his knee conditions, walking with a slight limp, while in a tandem gait his walk was normal. He added the Veteran did not use an assistive device. On physical examination, the December 2010 examiner found the left knee shows no signs of edema, instability, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, and there is no subluxation. Further examination of the left knee revealed crepitus; however, there was no genu recurvatum (deformity of the knee bending backward) and locking pain. There was no ankylosis. Range of motion findings for the left knee showed flexion at 120 (0-140 normal); pain begins at 120 degrees; repetitive range of motion was to 120 degrees with no additional degree of limitation. Extension was to 0 degrees for both initial and repetitive range of motion. The December 2010 examiner found that the Veteran’s left-joint function is not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. His objective findings regarding left-knee stability were that the medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test and the medial/lateral meniscus stability test were all within normal limits. The examiner added there was no subluxation. Notably, the Veteran reported residuals of his left knee disability as “pain and stiffness”; there is no notation as to giving way or instability, although giving way was noted for the right knee. An October 2011 VA primary care note states x-rays for both knees show severe degenerative disease. A December 2011 VA orthopedic surgery consult note shows that, upon examination, there was good range of motion for both knees, but medial joint line tenderness bilaterally. No instability was noted. A May 2012 physical examination in preparation for bilateral knee steroid injections noted good m/l stability, as well as full range of motion, but there was tenderness to palpation and effusion. A May 2013 VA orthopedic clinic physical examination also noted good mid-line stability and full range of motion for both knees; but also found a varus deformity (an inward turning at the knees). A review of x-rays revealed severe medial compartment bone-on-bone collapse. A subsequent visit in September 2013 showed left-knee range of motion to be at 5 to 130 degrees. A January 2014 VA orthopedic clinic physical examination noted good mid-line stability, with x-rays showing severe medial compartment bone-on-bone collapse. However, there was full range of motion and no swelling. April 2014 orthopedic surgery note states the Veteran uses knee braces for support and further noted his reports of difficulty walking and of a feeling of instability when walking and that he had been wearing knee braces. Physical examination revealed the Veteran’s left knee showed 0-120 range of motion (0-140 normal), the medial joint-line test for pain was positive and the lateral joint-line test for pain was negative; crepitus was detected; and there was no effusion. Additionally, June 2013 x-rays were reviewed and revealed marked medial compartment knee-joint space narrowing and bone-on-bone contact, but no evidence of effusion. In both the examination and the x-rays, no finding of instability was made. In May 2014, the Veteran underwent a left total knee arthroplasty, with some small-to-moderate levels of edema noted the day after the procedure. The clinical records do not support a finding that the Veteran’s left knee had limitation of flexion to 45 degrees or less, and/or a limitation of extension to 10 degrees or more at any time during the rating period on appeal. The Board acknowledges the Veteran’s reports of pain. However, pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). With regard to giving proper consideration to the effects of pain and other symptoms in assigning a disability rating per Mitchell and Deluca, the reports noted above document consideration of these principles. An increased rating is not warranted under these principles because there is not additional functional loss such as to actually limit the Veteran’s extension to 10 degrees or greater, or limit his flexion to 45 degrees or less. Moreover, there is not evidence or record that the Veteran had flare-ups of such frequency and duration that would warrant a higher rating. Sharp v. Shulkin, 29 Vet. App. 26, (2017). With regard to instability, the Board finds that the Veteran’s had no more than slight instability during any period on appeal. As noted above, the November 2010 found instability; however, subsequent examinations found no instability. The Board acknowledges that the Veteran is competent to report what he feels is instability of the knee, and that he wore a knee brace. However, with regard to the severity, the Board finds it notable that examiners were unable to find instability upon examination at any time after November 2010 despite numerous tests. The Board finds that if the Veteran had more than slight instability, it would reasonably be expected that he would not consistently to have been found to have good stability on examination (to include stability tests for medial/lateral collateral ligaments, anterior/posterior cruciate ligaments and the medial/lateral meniscus.) In addition, there are no emergency department records which reflect that the Veteran had fallen/and or injured himself due to instability of the left knee, and the Veteran has not alleged chronic frequent falls due to instability of the left knee. There is no competent credible evidence of more than slight lateral instability. (Continued on the next page)   The Board has considered the benefit-of-the-doubt doctrine where applicable. T. WISHARD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Franke, Associate Counsel