Citation Nr: 18152880 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 09-50 551 DATE: November 26, 2018 ORDER A rating in excess of 20 percent for service-connected fracture of the left tibia with left knee degenerative joint disease prior to June 8, 2010, is denied. FINDING OF FACT Prior to June 8, 2010, the Veteran’s left knee disability has more nearly approximated malunion of the tibia and fibula, with moderate knee disability characterized by joint space narrowing of the medial compartment with bone against bone, painful limitation of motion, and stiffness; however, marked knee or ankle disability, recurrent subluxation or instability, and/or frequent episodes of dislocation with locking pain and effusion have not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for service-connected fracture of the left tibia with left knee degenerative joint disease prior to June 8, 2010, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.59, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1960 to August 1962. In May 2015 and December 2016, the Board remanded the issues on appeal for additional development. During the pendency of this appeal, the Regional Office (RO) awarded an increased disability rating of 60 percent for the Veteran’s service-connected left knee disability as of August 1, 2011. In July 2017, the Board increased the Veteran’s left knee disability rating to 20 percent prior to June 8, 2010, and determined that the Veteran withdrew his claim for a disability rating in excess of 60 percent as of August 1, 2011. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In March 2018, the Court granted a Joint Motion for Remand (JMR), which vacated the Board’s decision only to the extent the Board denied his increased disability rating claim prior to June 8, 2010 (and specifically determined that the Veteran abandoned his claim with respect to a disability rating in excess of 60 percent as of August 1, 2011), and returned the claim to the Board for additional development and consideration. Entitlement to a rating in excess of 20 percent for a left knee disability prior to June 8, 2010 The Veteran is seeking an increased rating for his service-connected left leg/knee disability prior to June 8, 2010. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran’s knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). Moreover, a separate rating could also be warranted under 38 C.F.R. § 4.59, based on X-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). For the period on appeal, prior to June 8, 2010, the Veteran’s left knee disability has been assigned a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5262 (addressing impairment of the tibia and fibula). As an initial matter, the Board finds that although the Veteran does not necessarily have a concurrent tibia and fibula impairment, this is nevertheless the most appropriate diagnostic code to rate his disability given that his left knee disorder is predominantly characterized by impairment of the fibula (as opposed to limitation of motion, instability, meniscal injury, etc.). 38 C.F.R. § 4.71a. In order to warrant a rating in excess of 20 percent based on impairment of the tibia and fibula under this diagnostic code, the evidence must show malunion of the tibia and fibula with “marked” knee or ankle disability (30 percent). In this case, the Board notes that terms such as “moderate” or “marked” as used in the various diagnostic codes, to include DC 5262, are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the question of whether a particular degree of disability is “moderate” or “marked” is ultimately a legal rather than a medical one. 38 C.F.R. § 3.100(a) (delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination . . . so that the current rating may accurately reflect the elements of disability present.”). The terms “moderate” or “marked” do not appear to have a generally accepted medical definition. Therefore, the Board finds that it is appropriate to turn to a general-purpose dictionary definition of the terms. The term “moderate” means of average or medium quantity. Webster’s II New College Dictionary, 704 (1995). The term “marked” and its related form “markedly” are defined as strikingly noticeable or conspicuous. Synonyms include striking, outstanding, obvious, and prominent. See The American Heritage Dictionary of Idioms. Thus, the term “marked” is defined in terms of the capacity for outward observation, i.e., whether something is noticeable or obvious. As such, The Board notes that, under this definition, knee symptomatology and functional impairment that is obvious and conspicuous would meet the definition of “marked impairment.” After a review of the evidence, the Board finds a rating in excess of 20 percent prior June 8, 2010 is not warranted as there is not sufficient evidence that the Veteran’s left knee disorder was “marked” in severity. Specifically, the Board observes that while the Veteran’s March 2008 left knee x-rays indicate that while he had extensive degenerative changes, there were no acute abnormalities. Further, although the Veteran reported worsening left knee pain in a September 2008 VA examination, the findings from the examiner on balance are not adequate to demonstrate a “marked” left knee disability. In this case, the Board notes that despite the Veteran’s reported knee pain and use of a cane/knee brace, he nevertheless indicated that his treatments were “working pretty well,” and that his left knee was improving with steroid injections. Moreover, although the Veteran had a limp, he was still able to stand for 30 minutes, walk up to a quarter mile, and was completely independent in all of his activities of daily living. On examination, his left knee joint was reported as abnormal with painful limitation of motion; however, he still exhibited normal left knee extension to zero degrees with no pain, and flexion that was only slightly limited to 100 degrees, with pain beginning at 90 degrees. There was no additional limitation of motion with repetitive use. The Veteran reported that he experiences flare-ups two to three times weekly that would last for hours, and imitations his motion to 70 percent of normal. There was no evidence of tenderness, edema, effusion, redness, or heat. Additionally, although the imaging studies revealed a tibia injury characterized as bone against bone of the medial compartment of the knee, and a plantar calcaneal spur, there was no evidence of malunion of the fibula and tibia. As such, based upon the evidence of record, the Board finds that his overall level of impairment did not meet the “marked” criteria for a higher rating. Specifically, given that he was able to walk up to a quarter mile, stand for thirty minutes, and was functionally independently will all of his activities of daily living, there is not sufficient evidence that his functional impairment was “obvious” and “conspicuous.” See The American Heritage Dictionary of Idioms. Therefore, while he had a limp and degenerative arthritis, the Board finds that his level of functional impairment was more consistent with “moderate” or “average” knee impairment. Webster’s II New College Dictionary, 704. In arriving at this conclusion, the Board notes that the June 2010 medical records reflect that the Veteran had a left knee replacement due to the worsening of his disability; however, although the Veteran reported that he had “severe” pain prior to June 8, 2010, given his level of impairment as discussed above, there is not sufficient evidence in the record to demonstrate that his left knee disability was “marked” prior to June 8, 2010. Moreover, despite the Veteran’s assertions that his knee disorder was characterized by “marked” impairment, he is not competent to assign a specific level of disability to his service-connected left knee disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has also considered if the Veteran is entitled to a separate compensable rating under Diagnostic Code 5257 for recurrent subluxation or lateral instability. See Perez v. McDonald, 2014 U.S. App. Vet. Claims LEXIS 1694; see also M21-1, Pt. III, subpt. iv, ch. 4, sec. A.6.e. Here, the evidence of record is not sufficient to demonstrate a compensable rating for instability during this period on appeal. Specifically, after a comprehensive physical joint examination, the September 2008 VA examiner did not find any evidence of left knee joint deformities, giving way, and/or instability. Further, there was no evidence of recurrent subluxation or abnormal weight bearing. Moreover, there is no evidence in the Veteran’s private treatment records to demonstrate recurrent subluxation or instability. In arriving at this conclusion, the Board has specifically acknowledged the Court’s recent decision in English v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1464. Specifically, the Board has considered the Veteran’s statements that he had “chronic instability.” To the extent, however, the Veteran indicates he had “chronic instability,” the Board finds his statements to be less probative given that he did not report any symptoms of instability to the medical providers that were treating him for his knee disability. In other words, as the Veteran was receiving treatment for his knee disability during the course of the period on appeal, the Board would reasonably expect him to report “chronic” symptoms of instability to his treating medical provider – especially if his symptoms were of the severity he now asserts. Cf. Fountain v. McDonald, 27 Vet. App. 258, 273 (2015). Further, the Veteran was provided with a VA examination in September 2008 to assess the severity of his left knee disorder. Therefore, the fact that the Veteran did not report any symptoms of instability at that examination weighs against his credibility. Alternatively, the Board notes that while the Veteran is competent to report symptoms of instability, he is not competent to determine if his feelings of instability result in actual physical instability that is contemplated by the diagnostic code, and/or assign a specific disability level to his instability according to the appropriate diagnostic codes. See Rucker, 10 Vet. App. at 74 (1997); Layno, 6 Vet. App. At 469. Moreover, although certain lay statements could aid the Board in determining the severity of the instability, the Veteran’s statement in this particular case (i.e., that he has “chronic instability”) does not provide sufficient evidence regarding the actual severity of his instability to warrant a higher rating by itself. Therefore, as the Veteran’s statements are not sufficient to determine the severity of his condition, the Board affords more weight to the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. See English, 2018 U.S. App. Vet. Claims LEXIS 1464. Next, the Board finds that the Veteran is not entitled to a separate compensable rating under Diagnostic Code 5258 as the medical evidence, including from the September 2008 VA examination, reflects that he did not have left knee dislocation with frequent episodes of locking pain and effusion—nor does the Veteran assert otherwise. With respect to limitation of motion, the Board finds that a separate rating is not warranted under Diagnostic Codes 5260 or 5261 for limitation of flexion or extension, respectively. In this case, a physical examination revealed normal extension and flexion that was limited to 100 degrees, with pain starting at 90 degrees. Further, although the examiner opined that his motion would be reduced by 70 percent during a flare-up, this would still not equate to limitation of flexion to 45 degrees, or extension to 10 degrees, which would be required for the assignment of a 10 percent disability rating. Lastly, separate compensable ratings under Diagnostic Codes 5256 or 5263, respectively, is not warranted as the medical evidence of record has also not shown any diagnosis of left knee ankylosis or genu recurvatum. When considering these ratings, the Board has considered the impact of functional loss in the Veteran’s knees due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 206 -07 (1995). In this case, the Veteran has complained that he is limited in performing activities of daily living due to flare-ups, fatigue, pain, and weakness. As discussed, the Veteran stated that flare-ups limit his range of motion to 70 percent of his normal functioning; however, although the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and his complaints are adequately contemplated in the ratings he currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Here, the September 2008 VA examiner did not find any evidence of additional loss of motion or functioning after repetitive testing, weight bearing, and or during flare-ups that would warrant a higher rating. Additionally, as discussed in part, the Board acknowledges the Veteran’s assertions that his left knee disorder was more severe than the rating he currently receives. Specifically, the Veteran stated that he experiences chronic instability, severe pain, and restricted limitation of motion of the left knee, and has missed several weeks of work because of the severity of his left knee disorder. In rendering a decision on appeal, however, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report knee symptoms such as instability, pain, and limitation of motion, because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s service-connected left knee disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Finally, the Board finds that the Veteran’s left knee disability does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran’s service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran’s disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant’s exceptional disability picture exhibits other related factors identified in the regulations as “governing norms.” Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant’s disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran’s claim for extra-schedular consideration. The level of severity of the Veteran’s left knee disability is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In this regard, the Veteran’s left knee disability has been assigned a disability rating of 20 percent prior to June 8, 2010. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. James L. March Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel