Citation Nr: 1806523 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-05 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable rating, prior to September 26, 2014, and in excess of 10 percent thereafter, for left anterior cruciate ligament rupture. 2. Entitlement to an initial rating in excess of 10 percent for left knee instability associated with left anterior cruciate ligament rupture. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from February 2009 to September 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In February 2014, the Veteran requested a Travel Board hearing. See VA Form 9, Appeal to Board of Veterans' Appeals. The RO notified the Veteran of the date, time, and location of the hearing in August 2017; however, she failed to report. The Veteran has not requested that the hearing be rescheduled, or presented good cause for not reporting for the hearing. Therefore, the Board deems the hearing request withdrawn. See 38 C.F.R. 20.704(d) (2017). FINDINGS OF FACT 1. The Veteran's left anterior cruciate ligament rupture was productive of painful motion with flexion limited to no less than 125 degrees, weakness, less movement than normal, anterior joint instability, small effusion, popping, locking, and giving way; without evidence of limited extension, ankylosis, impairment of the tibia and fibula, recurrent subluxation or lateral instability, or dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 2. Left knee instability associated with left anterior cruciate ligament rupture was no more than slight. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for left anterior cruciate ligament rupture, prior to September 26, 2014, have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5024-5010 (2017). 2. The criteria for an increased rating in excess 10 percent for left anterior cruciate ligament rupture have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5024-5010 (2017). 3. The criteria for a disability rating in excess 10 percent for left knee instability associated with left anterior cruciate ligament rupture have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Prior to the initial adjudication of the claim in October 2012, the RO satisfied its duty to notify the Veteran. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b)(1). VA's duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159. VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Relevant service treatment and post-service medical records have been associated with the claims file. Although the Veteran contended that an October 2011 VA examination was invalid with regard to her knee pain, an additional examination was provided in June 2017, which was fully adequate. Neither the Veteran nor her representative has contended otherwise. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also February 2014 VA Form 9, Appeal to Board of Veterans' Appeals. Hence, the duties to notify and to assist have been met. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct times where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's left anterior cruciate ligament rupture was assigned a noncompensable rating, prior to September 26, 2014, and 10 percent thereafter, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. Additionally, a separate 10 percent rating was assigned under Diagnostic Code 5257. The normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, a noncompensable rating is warranted for limitation of flexion 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. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight impairment in the form of recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate impairment in the form of recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe impairment in the form of recurrent subluxation or lateral instability. Additionally, a compensable rating is warranted when the evidence shows either ankylosis (Diagnostic Code 5256); dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (Diagnostic Code 5258); symptomatic removal of semilunar cartilage (Diagnostic Code 5259); leg extension limited to 5 degrees or more (Diagnostic Code 5261); impairment of the tibia and fibula (Diagnostic Code 5262); or genu recurvatum (Diagnostic Code 5263). Id. Separate ratings may also be awarded for limitation of flexion and limitation of extension of the same knee joint. VAOPGCPREC 09-04, 69 Fed. Reg. 59990 (2004). In a precedent opinion by VA General Counsel, it held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria. Id. In addition to ratings based on limitation of motion, a separate rating may be assigned for lateral instability pursuant to Diagnostic Code 5257. When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In October 2011, the Veteran was afforded a general VA examination. She reported a pain level of 6 out of 10. She had symptoms of weakness and locking in her knee but did not have stiffness, deformity, instability, giving away, lack of endurance, effusion, episode of dislocation or subluxation, or any other external injuries. There were no signs of inflammation such as swelling, heat, redness, tenderness on palpitation, or drainage. She experienced flare-ups of knee pain that was precipitated by physical activity and alleviated with rest. Her pain level was 7 out of 10 and her flare-ups occurred 3 times a month for about one to 2 hours. She denied any additional limitations of the motion or functional impairment during her flare-ups. She did not use any assistive device; however, she wore a left knee brace. She had no prosthesis in the left knee. She did not have any hospitalizations or surgeries. Inflammatory arthritis was not present. Her left knee condition did not effect her employment or routine daily activities. She was able to stand for 2 to 3 hours and walk without limitation for 5 to 6 miles. She had normal flexion and extension of 140 degrees and zero degrees, respectively. Her muscle strength and collateral ligaments were within normal limits. She had a normal gait and the examiner did not observe any abnormal movement or guarding. Repetitive movements against her body weight did not decrease her range of motion or joint function. She was diagnosed with left anterior cruciate ligament rupture and nondisplaced tear involving the posterior horn of the lateral meniscus and myxoid degeneration of the posterior horn of the medial meniscus, left knee. September 2014 VA treatment records document that the Veteran felt her knee was only going to get progressively worse and she wanted to have surgery. She reported periodic popping or clicking with movement of her left knee. She also stated that she had pain after exercising and an overall feeling of weakness and instability in her left knee. A left knee X-ray conducted in October 2014 revealed normal bones, joint spaces and soft tissues. A November 2014 left knee X-ray showed an old complete ACL tear with resultant daily knee instability and giving way; mildly complex nondisplaced tear involving the body of the lateral meniscus; mild proximal patellar tendinopathy; increased femoral anteversion bilaterally with resultant "kissing patellae" but no chondromalacia patella; and no evidence of degenerative joint disease of the left knee articular surfaces. In January 2015, the Veteran had a VA orthopedic surgery outpatient consultation. She reported that she had no pain in her left knee. However, she described frequent popping and giving way in her left knee. Her left knee was unstable when she stood or got up out of a chair. Her left knee gave out when rounding corners quickly in cutting motion. She did not experience locking or recurrent effusions. Upon examination, she had mildly "kissing knee caps" but well aligned knees. Her left knee had small effusion. It was nontender. Her range of motion was zero to 120 degrees without pain. She had mild, intermittent popping in her knee with flexion and extension. There was no evidence of crepitus. She had some anterior joint instability. The Veteran was provided an additional VA examination in June 2017. The Veteran presented with instability of the left knee, which was a progression of her left anterior cruciate ligament rupture. She denied flare-ups of her left knee condition. However, she reported a decreased range of motion, occasional instability, and giving way after standing for prolonged periods. Her left knee flexion was 130 degrees and extension was zero degrees. She exhibited pain with flexion, extension, and on passive range of motion. However, pain with flexion limited her ability to bend her left knee. There was evidence of pain with weight and non-weight bearing. The opposing joint was undamaged and range of motion was within normal limits. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was objective evidence of crepitus. After repetitive use, flexion and extension remained the same and there was no additional functional loss or range of motion. The examiner determined the examination was neither consistent nor inconsistent with the Veteran's statements. As such, with repeated use over time, left knee flexion was 125 degrees, extension was zero degrees, and pain significantly limited functional ability. By contrast, during flare-ups, pain, weakness, fatigability or incoordination did not significantly limit functional ability. Additionally, the Veteran had normal muscle strength but less movement than normal. She did not have any muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability or recurrent effusion in her left knee. Her joint instability was normal except for an anterior instability of 1 plus (0-5 millimeters). She did not have shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. She did not have any meniscus conditions or surgical procedures. She did not use any assistive devices. There was no functional impairment of an extremity. Degenerative arthritis was not documented. Although she was limited in prolonged walking and standing, she could perform any type of occupational task without significant restrictions. Prior to September 26, 2014, the Board finds that the Veteran reported pain in her left knee, and that 38 C.F.R. § 4.59 directs that painful joints are entitled to at least the "minimum compensable rating for the joint." Additionally, the aforementioned evidence reflects that the Veteran's left knee condition has been manifested by pain, weakness, less movement than normal, anterior joint instability, small effusion, popping, locking, and giving way, throughout the entire appeal period. Although the Veteran had some limitation of flexion, the range of motion findings did not demonstrate left knee flexion limited to 30 degrees or extension limited to 15 degrees to warrant a rating in excess of 10 percent under Diagnostic Codes 5260 or 5261. In regard to the 10 percent rating assigned for left knee instability, the Board finds that the weight of the evidence demonstrates that the Veteran's left knee instability more closely approximates slight subluxation or lateral instability of the left knee. In this regard, the Board finds that moderate subluxation or lateral instability was not shown. June 2017 VA examination yielded normal findings except for an anterior instability of 1 plus. There were no signs of dislocation or subluxation, effusion, or inflammation. While there was small effusion in January 2015 and the Veteran wore a left knee brace in October 2011, the Board finds that objective evidence reveals that her left knee instability does not warrant a rating in excess of 10 percent under Diagnostic Code 5257. Additionally, the Veteran did not report instability of her knee nor was any found prior to September 2014. Hence, a compensable rating is not warranted for any period prior to the date assigned. The Board notes the Veteran has had frequent episodes of locking, pain, and small effusion. However, there is no evidence of dislocated semilunar cartilage of the left knee. Therefore, the Board finds that an increased rating is not available under Diagnostic Code 5258. As there is no evidence of record showing that the Veteran has ankylosis or impairment of the tibia and fibula, Diagnostic Codes 5256 and 5262, respectively, are not applicable. Additionally, Diagnostic Codes 5259 (symptomatic removal of semilunar cartilage) and 5263 (genu recurvatum) do not provide for ratings in excess of 10 percent. With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40 and 4.45, there is no indication in the medical evidence of record that any subjective complaints, such as pain, fatigability, incoordination, or weakness, resulted in additional limitation of function so as to meet the criteria for a higher evaluation. Although evidence of pain is an important factor for consideration, the Court has held that "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." See Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Rather, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance to constitute a functional loss. Id. Here, there is no objective evidence that the Veteran's pain results in additional functional loss that would warrant a higher schedular rating. To the extent that the Veteran described increased pain and decreased range of motion on flare-up, her lay assertions of record do not detail specific degrees of limitation or features of a left knee condition consistent with the higher rating criteria under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. As such, an increased rating is not warranted for the left knee under the Deluca criteria for any period of time on appeal. The Board acknowledges the Veteran's lay statements regarding the severity of the Veteran's symptoms, including complaints of popping, locking, and giving way. Laypersons are competent to attest to physical symptoms that are experienced or observed. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Board finds that the lay evidence describing the symptoms in this case does not establish a greater degree of functional impairment. Resolving reasonable doubt in favor of the Veteran, the Board finds that, throughout the entire appeal period, a 10 percent rating, but no higher, is warranted for left anterior cruciate ligament rupture. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). However, the Board finds that the preponderance of the evidence is against the claim for an increased rating in excess of 10 percent for left knee instability associated with left anterior cruciate ligament rupture. The Board finds that there is no reasonable doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C. § 5107(b). The Board has considered the Veteran's claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 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). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial 10 percent rating, prior to September 26, 2014, for left anterior cruciate ligament rupture, is granted. Entitlement to an initial rating in excess of 10 percent for left anterior cruciate ligament rupture is denied. Entitlement to an initial rating in excess of 10 percent for left knee instability associated with left anterior cruciate ligament rupture is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs