Citation Nr: 1806809	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  13-06 135	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to an increased rating in excess of 10 percent for status post meniscectomy for derangement of the left knee.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Creegan, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1986 to December 1988.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.

A videoconference hearing in this matter was held before the undersigned Veterans Law Judge in May 2017. The transcript is of record. 

This case was previously before the Board in August 2017, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDING OF FACT

Throughout the period on appeal, the Veteran's left knee status post-meniscectomy was manifested by painful motion, locking, and difficulty weight bearing.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for status post-meniscectomy for derangement of the left knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2017).





REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran's representative raised an objection to the September 2017 VA examination. That objection will be addressed below.

Neither the Veteran nor his representative has raised any other 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 duty to assist argument).

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3.

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). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Mansfield, 21 Vet. App.  505 (2007). This practice is known as staged ratings. Id.
The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Veteran is rated under DC 5259, for symptomatic removal of the semilunar cartilage. 

Concerning disabilities of the knee, separate evaluations under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension), may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990. Further, a claimant who has both a meniscectomy and instability or limitation of motion of a knee may be granted separate evaluations under Diagnostic Codes 5259 in addition to 5257, 5260, and 5261, without violating the rule against pyramiding in 38 C.F.R. § 4.14. Lyles v. Shulkin, No. 16-0994, 2017 U.S. App. Vet. Claims LEXIS 1704 (Vet. App. Nov. 29, 2017). However, any such separate rating must be based on additional disabling symptomatology. Id.

For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 60 degrees is 0 percent; 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, DC 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 5 degrees is 0 percent; extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, DC5261. 

Under VAOPGCPREC 9-2004, separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (September 17, 2004). Because ratings may be separately assigned for limitation of flexion and limitation of extension, the Board will consider both Diagnostic Codes.

Degenerative or traumatic 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. 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. 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 rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DCs 5003, 5010.

 Diagnostic Code 5257 pertains to other impairment of the knee involving recurrent subluxation or lateral instability and provides a 10 percent rating for slight impairment, 20 percent rating for moderate impairment, and 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The VA General Counsel has issued a precedential opinion holding that separate ratings may be assigned for arthritis with limitation of motion under Diagnostic Code 5260 or 5261 and for instability under Diagnostic Code 5257. See VAOPGCPREC 23-97 (July 1, 1997). 

Treatment records and submitted statements reflect complaints of painful motion, pain with weight bearing, locking, and fatigue throughout the appeal period.

The Veteran was provided a VA examination in March 2011. The examiner found full extension of the knee, with no pain, weakness, fatigue, or lack of endurance on repeat testing. Flexion was limited to 95 degrees. There was no subluxation or instability. Muscle strength was normal. The Veteran contended this examination was inadequate because the examiner did not have the Veteran's claims file. In August 2017 the case was remanded to obtain a new examination.

The Veteran received another VA examination in September 2017. The examiner found full extension of the knee, with pain on weight bearing. Flexion was limited to 115 degrees. There was no subluxation or instability. Muscle strength was normal. The examiner noted that the Veteran suffered functional loss manifested by inability to run, squat, or do gym exercises and increased pain with bad weather, overuse of the leg, and when doing a lot of walking or lifting. The Veteran contends this examination is inadequate because no goniometer was used. There is no indication on the examination of whether or not a goniometer was used. However, the Court has ruled that there is a "presumption of regularity" under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992), (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). Furthermore, the Board notes that the measurements required to warrant a rating of 10 percent for either flexion or extension were significantly different than those obtained. It is unlikely, even without use of goniometer, that the examiner would have obtained measurements so significantly incorrect as to make a difference in the rating in this case. Therefore, if the examiner did not use a goniometer, it is harmless error. The Board finds the examination is adequate. 

The evidence does not support a rating for flexion, extension, or instability. Records do reflect arthritis in the knee. However, the knee is only one major joint, not two as required for a 10 percent rating. While painful motion can warrant a 10 percent rating under DC 5003, the Veteran's current rating under DC 5259 already contemplates painful motion as the damaged cartilage is the source of pain. Therefore, granting another rating under DC 5003 for painful motion would constitute pyramiding. 

All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran's status post meniscectomy for derangement of the left knee. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  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).

ORDER

Entitlement to an increased rating in excess of 10 percent for status post meniscectomy for derangement of the left knee is denied.




____________________________________________
J. W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs