Citation Nr: 1807109	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  12-06 052	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for posttraumatic arthritis, left knee injury, with chronic anterior ligament insufficiency status postoperative prior to February 18, 2013.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. Pelican, Counsel


INTRODUCTION

The Veteran served on active duty in the Army from July 1958 to July 1961, and was awarded the Driver and Mechanic Badge, among other decorations.  

This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part granted service connection for posttraumatic arthritis, left knee injury, with chronic anterior ligament insufficiency, status postoperative, and assigned a 10 percent rating effective October 30, 2009.  It also granted a separate evaluation for left knee instability and assigned a 10 percent rating, effective July 13, 2010.

In October 2012, the Veteran testified at a hearing before a Decision Review Officer (DRO).  A transcript of that hearing is of record.  

In an August 2015 decision, the Board denied the issues of entitlement to an initial rating in excess of 10 percent for posttraumatic arthritis, left knee injury, with chronic anterior ligament insufficiency, status postoperative, prior to February 18, 2013 and entitlement to an initial separate evaluation in excess of 10 percent for left knee instability prior to February 18, 2013.

The Veteran appealed the August 2015 Board decision to the United States Court of Appeals for Veterans Claims (the Court).  In an April 2016 Order, the Court granted the parties' April 2016 Joint Motion for Partial Remand (Joint Motion), vacating the Board's August 2015 decision as to the denial of entitlement to an initial rating in excess of 10 percent for the left knee disability prior to February 18, 2013 and remanded the appeal to the Board for readjudication consistent with the Joint Motion.  The Board's denial of entitlement to an initial separate evaluation in excess of 10 percent for left knee instability prior to February 18, 2013 was not disturbed in the Court's April 2016 Order; accordingly, that matter is not before the Board.  

In September 2016, the Board granted a separate initial 10 percent rating for residual symptoms from removal of left knee semilunar cartilage, and remanded the issue of entitlement to an initial rating in excess of 10 percent for posttraumatic arthritis, left knee injury, with chronic anterior ligament insufficiency status postoperative prior to February 18, 2013.

The Board remanded the case again in August 2017 for additional development, and the case has been returned to the Board.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

For the period prior to February 18, 2013, the Veteran's left knee disability was shown to have extension limited to 10 degrees with flare-ups reducing range of motion by 5 to 10 degrees from baseline, more closely approximating the criteria specified for a 30 percent rating.  Extension limited to 30 degrees, or flexion limited to 45 degrees, have not been shown.


CONCLUSION OF LAW

For the period prior to February 18, 2013, the criteria for a rating of 30 percent, but no higher, based on a limitation of extension of the Veteran's left knee have been met or approximated.  38 U.S.C.A. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5261 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in an October 2008 letter.  38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017).  

Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his post-service treatment records, and VA examination reports.

This claim was remanded in September 2016 and August 2017 to obtain outstanding medical records and obtain an opinion regarding the functional impairment resulting from the Veteran's flare-ups.  In October 2016 records were obtained from Columbus Orthopaedic Clinic, and in September 2017 the RO obtained the requested opinion regarding the additional functional impairment resulting from the Veteran's flare-ups.  Accordingly, there has been substantial compliance with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268 (1998). 

Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1 (2017).  Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and evaluating functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017).  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40 (2017), taking into account any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups.  38 C.F.R. § 4.14 (2017).  The provisions of 38 C.F.R. § 4.40 (2017) and 38 C.F.R. § 4.45 (2017), however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).

The Board observes that the Veteran is separately compensated for instability and residual symptoms of removal of cartilage; those aspects of his left knee disability are not the subject of this appeal.  Moreover, as ankylosis has not been shown at any time, a rating under Diagnostic Code 5256 is not applicable.

The general rating schedules for limitation of motion of the knee are 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261 (2017).  Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion.  See 38 C.F.R. § 4.71a, Plate II (2017).  

Under Diagnostic Code 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees.  A 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees.  

Under Diagnostic Code 5261, a 10 percent disability rating is warranted for extension limited to 10 degrees.  A 20 percent disability rating is assigned for extension limited to 15 degrees.  A 30 percent disability rating is assigned for extension limited to 20 degrees.  A 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees.  See 38 C.F.R. § 4.71a (2017).  

Separate ratings may be assigned for compensable limitation of both flexion and extension.  See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint).

During the May 2010 VA joints examination the Veteran reported he was unable to completely straighten his knee.  He said that going up and down stairs or steps was painful, as was squatting.  He reported chronic soreness rather than intermittent flare-ups.  Range of motion testing showed "-10 degrees of extension" and 10 to 120 degrees of flexion.  The Veteran had no pain on motion and no additional limitation of motion after repetitive motion.

According to the November 2012 VA joints examination report the Veteran described experiencing increased flare-up pain secondary to knee instability.  He said he performed no physical activities due to knee pain and instability.  Range of motion testing revealed flexion to 105 degrees with painful motion beginning at 30 degrees, and extension to 10 degrees without evidence of pain.  Repetitive testing resulted in no additional loss of function or range of motion.  The Veteran experienced functional impairment by way of less movement than normal, incoordination, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing.  The examiner opined that the Veteran was able to perform all activities of daily living, but had difficulty with any physical or sedentary activity or task that requires the Veteran to squat or kneel, walk up or down stairs or inclines, walk over uneven terrain, stand for long periods, walk more than a quarter mile, ascend or descend from low surfaces frequently, and sit with the knees bent for prolonged periods.

A VA opinion was obtained in September 2017 addressing the additional functional limitation of the Veteran's left knee during periods of flare-ups from October 30, 2009 to February 18, 2013.  The examiner recounted the prior examination findings and the Veteran's reported circumstances regarding flare-ups and opined that the Veteran's flare-ups would be mild and result in additional loss of motion of 5 to 10 degrees from his baseline.  

Applying the September 2017 clinician's findings to the range of motion measurements of record, the Veteran's flexion would be limited to, at most, 95 degrees, which does not warrant a compensable rating under Diagnostic Code 5260 at any point.  However, the Veteran's extension would be limited to 20 degrees, which is consistent with a 30 percent rating under Diagnostic Code 5261.  

Given the wide array of precipitating factors for flare-ups described by the Veteran at his November 2012 examination and the fact that the September 2017 clinician's opinion retrospectively addressed the limitation of motion during flare-ups from October 30, 2009 to February 18, 2013, the Board concludes the evidence more closely approximates a 30 percent rating based on limitation of extension for the entire period on appeal.  

Nevertheless, as the September 2017 clinician opined that the Veteran's limitation of motion during flare-ups would be at most 20 degrees, a rating in excess of 30 percent based on limitation of extension is not warranted at any time during the period on appeal.  


ORDER

For the period from October 30, 2009 to February 18, 2013, a 30 percent disability rating, but no higher, for limitation of extension is granted.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs