Citation Nr: 18151225 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-35 617 DATE: November 19, 2018 ORDER Entitlement to a disability rating in excess of 50 percent for residuals of left knee injury with limitation of motion is denied. A separate 10 percent rating for left knee post-operative meniscectomy is granted, subject to controlling regulations applicable to the payment of monetary benefits. Entitlement to an effective date earlier than May 15, 2013 for the assignment of a 50 percent disability rating for residuals of left knee injury with limitation of motion is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran’s residuals of left knee injury with limitation of motion is manifested by pain; remaining extension is better than 45 degrees. 2. The Veteran is status post left knee meniscectomy. 3. VA received a claim for an increased rating for residuals of left knee injury on May 15, 2013. 4. It was not factually ascertainable that an increase in disability was shown within the one-year period prior to May 15, 2013, based upon the applicable legal criteria and the evidence of record. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for residuals of left knee injury with limitation of motion are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). 2. A separate 10 percent evaluation is warranted for residuals of meniscectomy. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic 5259 (2017). 3. The criteria for an effective date earlier than May 15, 2013, for the assignment of a 50 percent rating for residuals of left knee injury with limitation of motion are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1975 to October 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) regarding only his acquired psychiatric disorder claim. The VLJ specified that testimony would not be taken on the left knee disability issues unless the Veteran requested such. A copy of the transcript has been associated with the claim folder. The VLJ clarified the issues on appeal and made inquiry as to the existence of outstanding evidence. The VLJ also specifically discussed potential evidence that would support the Veteran’s claims and held the record open for 60 days for the submission of evidence. The actions of the VLJ therefore comply with 38 C.F.R. § 3.103 (2017). Higher evaluation for residuals of left knee injury with limitation of motion Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is 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 apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. 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). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2017). When a disability has undergone varying and distinct levels of severity during the appeal, it is appropriate to apply staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017). Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Diagnostic Code 5010 is for arthritis due to trauma, substantiated by X-ray findings and provides for rating as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Here, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is also competent to report symptoms of knee pain. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). He is competent to describe his symptoms and their effects on employment and daily activities. The Veteran’s service-connected residuals of left knee injury with limitation of motion is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261 (limitation of extension). Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Diagnostic Code 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. VA General Counsel has held that separate evaluations under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990 (September 17, 2004). VA General Counsel has held that a Veteran who has both arthritis and instability of a knee may be granted separate evaluations under Diagnostic Codes 5003 and 5257, respectively, without violating the rule against pyramiding in 38 C.F.R. § 4.14. The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” or “moderate” by VA examiners and others, 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. The Board additionally notes that there is no evidence of ankylosis of either knee, frequent locking of the knee, or impairment of the tibia and fibula. Thus, Diagnostic Codes 5256, 5258, and 5262 do not apply in this case. The Veteran was provided a VA examination in January 2014. The examiner noted a diagnosis of status post-operative left knee injury with excision of Baker’s cyst and chondromalacia. The Veteran reported that his knees popped and locked and he had difficulty bending and kneeling. He further noted flare-usp when walking or standing for long or short periods of time. Range of motion testing revealed left knee flexion to 95 degrees with pain at 90 degrees and extension to zero degrees with no objective evidence of painful motion. Repetitive motion testing revealed left knee flexion to 95 degrees and extension to 45 degrees. The examiner noted functional loss manifested by less movement than normal and pain on movement. Anterior and posterior instability testing was normal, although medial-lateral instability testing was 2+. There was no evidence or history of recurrent patellar subluxation/dislocation. Although the Veteran reported a history of shin splints, these symptoms resolved. He noted a meniscal tear as well as frequent episodes of joint pain. The Veteran’s total left knee replacement, which was in 1985, manifested in intermediate degrees of residual weakness, pain or limitation of motion. He regularly used a brace for ambulation. The Board also notes that VA treatment records document treatment for the Veteran’s left knee pain and his use of a brace. With regard to forward flexion of the Veteran’s left knee, Diagnostic Code 5260 contemplates a noncompensable evaluation where there is limitation of knee flexion to 60 degrees. During the period under consideration, the greatest limitation of flexion of the left knee was 90 degrees. There is no evidence which indicates that a greater limitation of flexion currently exists during this period. Thus, a disability rating in excess of 50 percent for left knee limitation of motion is not warranted under Diagnostic Code 5260. With regard to extension of the Veteran’s knee, Diagnostic Code 5261 contemplates a noncompensable evaluation with a limitation of knee extension to 5 degrees. As discussed above, the Veteran is assigned a 50 percent disability rating for left knee limitation of motion to include extension. This is the maximum disability rating warranted under Diagnostic Code 5261. With regard to the Veteran’s report that he must use a cane as well as braces for ambulation, the Board notes that the Veteran is currently in receipt of a 20 percent disability rating for post-op residuals, left knee injury with excision of Baker’s cyst with residual scar and chondromalacia with lateral instability under Diagnostic Code 5257. As discussed above, in order to warrant the higher disability rating of 30 percent, the evidence must show severe recurrent subluxation or instability. The Board finds that such has not been demonstrated during the period under consideration. The Board acknowledges the Veteran’s regular use of a brace for stability as well as 2+ medial-lateral instability documented during the January 2014 VA examination. However, stability testing was otherwise normal, and the VA examiner specifically noted the absence of recurrent subluxation/dislocation. There are no findings contrary to the VA examination report during the period under consideration. Therefore, the Board finds that the evidence does not demonstrate lateral instability or recurrent subluxation in the Veteran’s left knee such that a higher 30 percent rating under Diagnostic Code 5257 is for application. Further, the Board finds the examiners’ findings more probative than the Veteran’s statements because they conducted testing specifically to determine whether there was subluxation and instability. The Board considered whether higher and/or separate ratings would be warranted for the left knee disability on the basis of additional functional impairment and loss. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). The Board finds that any additional functional loss and impairment is not to the degree to warrant a rating in excess of 50 percent for the residuals of left knee injury with limitation of motion under Diagnostic Code 5261 and/or a separate/higher rating under Diagnostic Code 5260. The clinical findings of record do not reflect any range of motion findings that would warrant even a compensable rating under Diagnostic Code 5260. The Board notes the report of the January 2014 VA examiner indicating that there is a postsurgical scar associated with the Veteran’s left knee disability which is consistent with the Veteran’s reported surgical history. Under 38 C.F.R. § 4.118, Diagnostic Code 7801, a 10 percent rating is warranted for a scar not of the head, face, or neck that are deep and nonlinear and has an area or area of at least 6 square inches (30 sq. cm.) but less than 12 square inches (77 sq. cm.). Under 38 C.F.R. § 4.118, Diagnostic Code 7802, a 10 percent rating is warranted for a scar not of the head, face or neck, that is superficial and nonlinear and have an area or areas of 144 square inches (929 sq. cm.) or greater. Under 38 C.F.R. § 4.118, Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. Crucially, the evidence of record indicates that the Veteran’s scar is asymptomatic. Specifically, the January 2014 VA examiner reported that the Veteran’s scar is not painful or unstable, and that the total area of the scar is not greater than 39 square cm. There is no competent and probative evidence to the contrary. Accordingly, the Board finds that a separate rating is not warranted for the Veteran’s scar. Finally, with regard to the Veteran’s report that he underwent a meniscectomy, the Court has established that a separate rating may be established for meniscus disability. VA has not amended any regulations and the decision of the Court controls. The evidence of record documents the Veteran’s in-service arthroscopy and partial trimming of the lateral meniscus. We accept that he had manifestations based on his credible report of pain and the January 2014 VA examiner noting residual signs and/or symptoms of the meniscectomy. A separate 10 percent evaluation is warranted. With regard to extraschedular consideration, neither the Veteran nor his attorney has raised any issue pertaining to this matter, nor have any other issues pertaining to extraschedular consideration been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. Ap. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Earlier effective date for residuals of left knee injury Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran’s claim was received by VA prior to that date, the former regulations apply. Specific to claims for increased disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. Otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b) (2012); 38 C.F.R. § 3.400(o)(2) (2017). A claim is a communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2017). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, the authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155 (2015). VA received the Veteran’s claim for an increased rating for his left knee injury residuals on May 15, 2013. A February 2014 rating decision granted a separate 10 percent rating for residuals of left knee injury, and a subsequent June 2014 rating decision increased the rating to 50 percent effective May 15, 2013. The Veteran filed a notice of disagreement with the effective date of the 50 percent disability rating. Although he reported in the notice of disagreement that the effective date should be February 12, 2014, as that date is later than the current effective date, the Board will nonetheless determine if an earlier effective date is warranted. Initially, the Board notes that the Veteran filed a claim of entitlement to service connection for left knee surgery on November 29, 1985. A May 1986 rating decision granted service connection for postoperative residuals of left knee injury and assigned a 10 percent disability rating effective October 23, 1985. The Veteran did not appeal that rating decision and the decision therefore became final. 38 U.S.C. § 7105(b) (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2017). Thus, in the absence of clear and unmistakable error, an effective date of the original May 1986 award is not for application. Rudd v. Nicholson, 20 Vet. App. 296 (2006). The record does not show, and the Veteran does not allege, that he filed a claim for increase prior to May 15, 2013, and after the May 1986 rating decision. Therefore, the Board finds that there was no pending claim for an increased rating for residuals of left knee injury prior to May 15, 2013. Additionally, within one year prior to the filing of the May 15, 2013 claim for increased rating, no such record indicates entitlement to a 50 percent rating during this period under any Diagnostic Code related to the Veteran’s left knee. Indeed, there are no findings of left knee extension to 45 degrees, ankylosis, or total left knee replacement manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256, and 5261. Pertinently, there is no medical evidence of record during this period that is congruent with a 50 percent disability rating. In light of the foregoing, the Board finds that it was not factually ascertainable that an increase in disability was shown within the one-year period prior to May 15, 2013, based upon the applicable legal criteria and the evidence of record. In conclusion, an effective date earlier than May 15, 2013, for the award of a 50 percent rating for residuals of left knee injury with limitation of motion is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service connection for an acquired psychiatric disorder During the above-referenced Board hearing in April 2017, the Veteran reported that he currently received mental health treatment at a VA facility. See the April 2017 Board hearing transcript, pgs. 3-4. He subsequently submitted statements indicating recent VA treatment. A review of the claims folder reveals that the most recent association of VA treatment records with the claims folder was in June 2014. As such, the Board finds that an attempt should be made to identify and associate these records with the Veteran’s claims folder. In this regard, where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, “in contemplation of law, before the Secretary and the Board and should be included in the record”). The matter is REMANDED for the following action: 1. Request any outstanding VA treatment records pertaining to the claim remanded herein, to include treatment records dated from June 2014. All attempts to secure this evidence must be documented in the claims folder. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and   arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel