Citation Nr: 1807360 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 10-31 870A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for internal derangement, right knee, prior to October 29, 2014. 2. Entitlement to a rating in excess of 30 percent for status post right knee replacement from December 1, 2015. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Coast Guard from January 1972 to September 1976. This matter comes to the Board of Veterans'Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a 10 percent rating assigned for the Veteran's service-connected internal derangement, right knee. The Veteran timely appealed. During the pendency of the appeal, the Veteran underwent a right knee replacement on October 29, 2014. As a result, in a March 2015 rating decision, the RO granted the Veteran a 100 percent disability rating from October 29, 2014, to December 1, 2015; and, a 30 percent disability rating from December 1, 2015 onward. Since this grant did not constitute a full grant of the benefits sought on appeal, this claim remains for appellate review for the period prior to the knee replacement surgery and the period following the knee replacement surgery and convalescence. See AB v. Brown, 6 Vet. App. 35, 39 (1993). However, as the 100 percent rating assigned from October 29, 2014 to December 1, 2015 represents the highest rating available for that time period, the Board will not disturb the rating for the Veteran's knee disorder for that period. When this matter initially came before the Board, in an April 2014 decision, the Board remanded the matter in order to provide the Veteran with an opportunity for a hearing. A hearing was subsequently scheduled for July 11, 2014, but the Veteran failed to appear. When this matter returned to the Board, in a June 2017 decision, the Board found that the Veteran's hearing request is considered withdrawn. In addition, the Board remanded for further development, as the Veteran had not been provided a VA examination since his right knee replacement surgery. Said development has been completed, and the matter has been returned to the Board for adjudication. FINDINGS OF FACT 1. Prior to October 29, 2014, the Veteran's service connected internal derangement, right knee, was manifested by recurrent subluxation or lateral instability that was slight in nature, as well as flexion limited to more than 60 degrees, extension limited to less than 5 degrees, arthritis without occasional incapacitating exacerbations, and pain. 2. Since December 1, 2015, the Veteran's service connected right knee, status post total knee replacement, has been manifested by complaints of pain, weakened movement, fatigability, and swelling; no ankylosis or impairment of the tibia or fibula has been shown, and no limitation of extension has been shown. CONCLUSIONS OF LAW 1. Prior to October 29, 2014, the criteria for a disability rating in excess of 10 percent for an internal derangement, right knee, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2017). 2. Since December 1, 2015, the criteria for a disability rating in excess of 30 percent for status post right knee replacement have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.71a, Diagnostic Codes 5055, 5256, 5261, 5262 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Here, the RO sent correspondence throughout the appeals process, but specifically in November 2008 and April 2011, that informed the Veteran of what evidence was needed to establish the benefit sought, of what VA would do or had done, and of what evidence the Veteran should provide. In addition, the letters informed the Veteran of how disability ratings and effective dates are assigned. The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim, with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate a claim for the benefits sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The evidence of record contains the Veteran's service treatment records, lay statements of the Veteran, as well as post-service treatment from both private and VA treatment providers. Also of record are a March 2007 VA examination, a May 2011 VA examination, and a June 2017 VA examination. In light of the foregoing, the Board concludes that the VA's duties to the Veteran have been fulfilled. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria & Analysis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for any increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning now to the issue before the Board, the Veteran seeks a disability rating in excess of 10 percent prior to October 29, 2014 for internal derangement of his right knee; and in excess of 30 percent after December 1, 2015 for his status post right knee replacement. Because of this staged rating, and the different rating criteria used for each, the Board will review each period of appeal separately. Prior to October 29, 2014 As an initial matter, the Board notes that when dealing with an increased rating claim, the appropriate period on appeal dates to one year prior to the date of the Veteran's claim. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Here, the Veteran applied for an increased rating on November 13, 2008. As such, the Board will look back to one year prior to the Veteran's claim for an increase, which is November 13, 2007. Thus, the period of review for the first of the staged ratings is November 13, 2007 to October 29, 2014. The Veteran's right knee disability has been rated under Diagnostic Code 5257, which governs instability of the knee. This Diagnostic Code provides a 30 percent disability rating for severe recurrent subluxation or lateral instability; a 20 percent disability rating for moderate recurrent subluxation or lateral instability; and a 10 percent disability rating for slight recurrent subluxation or lateral instability. Degenerative arthritis is rated under Diagnostic Code 5003. The Diagnostic Code provides a 20 percent disability rating for degenerative arthritis substantiated by X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations; and a 10 percent disability rating for degenerative arthritis substantiated by X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a. Limitation of flexion of the knee is rated under Diagnostic Code 5260. The Diagnostic Code provides a 30 percent disability rating for flexion limited to 15 degrees; a 20 percent disability rating for flexion limited to 30 degrees; a 10 percent disability rating for flexion limited to 45 degrees; and a noncompensable rating for flexion limited to 60 degrees. 38 C.F.R. § 4.71a. Limitation of extension of the knee is rated under Diagnostic Code 5261. The Diagnostic Code provides a 50 percent disability rating for extension limited to 45 degrees; a 40 percent disability rating for extension limited to 30 degrees; a 30 percent disability rating for extension limited to 20 degrees; a 20 percent disability rating for extension limited to 15 degrees; a 10 percent disability rating for extension limited to 10 degrees; and a noncompensable rating for extension limited to 5 degrees. 38 C.F.R. § 4.71a. A review of the medical evidence of record from November 13, 2007 to October 29, 2014 shows a long history of right knee pain. An April 2009 record from MIMA Sports Medicine reflects the Veteran was seen for a new patient consultation and presented with symptoms of right knee pain for several months; pain with walking and prolonged standing; weakness in the knee; moderate ache when bends or twists; but, being fairly pain free at night. Upon examination, range of motion was noted to be from full extension of 0 degrees to 130 degrees of flexion. Imaging studies were taken and showed full thickness articular cartilage loss in the lateral tibial plateau, chondromalacia at the lateral femoral condyle, and maceration at the lateral meniscus. The examiner diagnosed the Veteran with moderate arthrosis of the lateral compartment of the right knee. Recommended treatment was an injection of the right knee. In the February 2009 VA examination, the Veteran complained of worsening pain in his right knee with symptoms of the knee "giving out"; a constant dull/achy pain with occasional sharp pain; being unable to lift or bend due to his right knee; and instability. Further, he reported no episodes of flare-ups. On examination, the Veteran had antalgic gait and flexion was measured as 100 degrees with normal extension to 0 degrees. On repetitive use test, there were no additional limitations other than pain without further loss of motion. No instability was found on objective testing. The examiner diagnosed the Veteran with right knee impairment/strain and it was determined to have no effect on the usual daily activities. In a June 2010 private examination of the Veteran at MIMA Sports Medicine, the examiner noted the knee appears to have valgus alignment. Range of motion is from 0 degrees of extension to 125 degrees of flexion. There is no erythema or warmth about the knee. The patello-femoral joint is mobile and non-tender and no apprehension with patella mobility. Ligamentously the knee is stable to Lachman's test, valgus stress, varus stress, and posterior sag. There is focal tenderness to palpation at the medial joint line. McMurray's examination reveals medial crepitus. Imaging studies were done, and the lateral compartment of the right knee demonstrates moderate narrowing with moderate osteophyte formation. Based on symptoms, physical examination findings, and imaging studies, the examiner opined that the Veteran has a symptomatic moderate arthrosis of the lateral compartment of the right knee. In the May 2011 VA examination, the Veteran reported symptoms of pain; difficulty walking long distances and standing for long periods of time; and difficulty climbing. He did not complain of instability or giving way. Upon examination, the examiner noted joint knee pain with crepitus, tenderness, pain at rest, abnormal motion, clicks or snaps and grinding. Flexion of the right knee was measured at 0 to 130 degrees, and there was no ankylosis noted. Reference was made to a recent MRI by a private physician that showed degenerative joint disease of the right knee. It was noted that the Veteran continued to be employed full-time as a pest control technician, a position he held for the last 10-20 years, and that he had not lost time from work during the last 12 month period. The examiner diagnosed the Veteran with degenerative joint disease of the right knee. Upon review of the relevant evidence for this time period, prior to October 29, 2014, the Board finds that the Veteran's symptoms are consistent with the 10 percent rating assigned, based on the symptoms presented, which have been no more than "slight" instability during this period. To obtain a higher rating for the internal derangement of the Veteran's right knee, it is necessary to show moderate or severe recurrent subluxation or lateral instability. Of particular note is the February 2009 VA examination where, despite the Veteran's report of instability due to his right knee "giving out," no instability was found on objective testing. Further, the Board notes that at the May 2011 VA examination, the Veteran denied experiencing any instability or subluxation entirely. Thus, the Board finds that the Veteran's right knee disability has been manifested by no more than slight instability throughout this period. In addition, the most probative record establishes that the Veteran is not entitled to a separate rating for limitation of flexion or extension of the right knee. The VA and private examinations of record reflect that, prior to October 29, 2014, the Veteran's extension of the right knee was consistently noted to be full, to 0 degrees, and flexion was no worse than to 100 degrees. The Rating Schedule provides a noncompensable rating for flexion limited to 60 degrees and a noncompensable rating for extension limited to 5 degrees. The medical record does not indicate any observable limitation of flexion or extension that would entitle the Veteran to a separate rating for his right knee disability. Moreover, the Veteran's reports of pain and limitation of motion of the right knee, while competent and credible, do not specifically indicate that flexion is limited to 60 degrees or that extension is limited to 5 degrees or worse. Accordingly, the Board assigns greater probative value to the medical evidence of record and finds that the Veteran is not entitled to a separate rating for limitation of flexion or limitation of extension for his internal derangement, right knee, prior to October 29, 2014. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Further, the Board finds that the competent and credible evidence of record does not establish entitlement to a rating for arthritis of the right knee. Here, the evidence reflects a competent and credible diagnosis of arthritis in his right knee based on radiological study. However, while the Veteran indeed has arthritis of the right knee, he is still not entitled to a rating for arthritis because a rating for limitation of flexion or extension is not in effect for his right knee disability and, as discussed above, is not warranted here. See VAOPGCPREC 9-98 ("When a knee disorder is already rated under DC 5257, the veteran must also have limitation of motion under DC 5260 or DC 5261 in order to obtain a separate rating for arthritis."). In sum, the Veteran is not entitled to a rating in excess of 10 percent for internal derangement, right knee, whether for knee instability, limitation of flexion, or limitation of extension. Further, the Veteran is not entitled to an additional disability rating for arthritis of the right knee. The Board has considered the lay statements of the Veteran. While lay persons are competent to provide opinions on some medical issues, See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), in this case, such an opinion falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent that the Veteran contends that his internal derangement, right knee, is more severe than currently evaluated, while he is competent to describe that he has right knee pain, he is not competent to report that his right knee pain is of sufficient severity to warrant a certain percent evaluation under VA's tables for rating right knee disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment) which he does not possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As a result, the Board finds the results of the VA and private examinations to be more probative than the lay evidence, particularly the February 2009 and May 2011 VA examinations, as discussed above. There is no evidentiary basis upon which to assign an increased rating. Thus, the Board finds that a higher rating is not warranted for the Veteran's internal derangement of the right knee prior to October 29, 2014. After December 1, 2015 The Veteran had right knee replacement surgery on October 29, 2014. Knee replacements are rated under Diagnostic Code 5055. Under this diagnostic code, a 100 percent rating is warranted for one year following implantation of the prosthesis. (This one-year period has already been awarded to the Veteran following his October 29, 2014 right knee replacement surgery.) After the one-year period, the Veteran's knee symptoms are to be rated based on residuals of the surgery, with a 30 percent rating being the minimum. A 60 percent rating is available for chronic residuals consisting of severe painful motion or weakness. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula). In a June 2017 VA examination, the Veteran reported still having some problems with his right knee after the replacement, to include his knee "giving out" once a day and weekly flare-ups. Upon examination, the examiner noted the range of motion of the right knee was abnormal, with flexion measured as 0 to 105 degrees. Pain was noted on the exam, with general tenderness of the right knee. The Veteran was able to perform repetitive use testing with no additional functional loss or range of motion after three repetitions. There was no reduction in muscle strength of the right knee (5/5). There was no muscle atrophy. There was no ankylosis. There was no joint instability. As it relates specifically to residuals of the total knee replacement, the examiner noted there were intermediate degrees of residual weakness, pain or limitation of motion. The examiner also noted the results of a September 2015 imaging test that showed the total knee arthroplasty is intact; no dislocation; no lucencies that would suggest loosening; stable alignment; and, joint effusion. Finally, the examiner opined that it is less likely than not that the Veteran's right knee and other service-connected disabilities preclude limited duty or sedentary employment. Upon review of the evidence, the Board finds that the medical evidence does not indicate chronic right knee residuals such as severe painful motion or weakness in the affected extremity or ankylosis so as to warrant a 60 percent rating under Diagnostic Code 5055 for the period after December 1, 2015. In so finding, the Board looks to the findings of the June 2017 VA examiner, who acknowledged the Veteran's complaints of pain and general tenderness as well as flare ups, but found no ankylosis or impairment of the tibia or fibula. Range-of-motion testing at that time showed flexion from 0 to 105 degrees. The examiner specifically found the Veteran to experience intermediate degrees of residual weakness, pain or limitation. As such, the Board finds that the level of symptomatology displayed at the June 2017 VA examination does not amount to the level of severe painful motion or weakness to warrant a 60 percent rating under Diagnostic Code 5055. The Board has also considered whether the Veteran is entitled to a rating in excess of 30 percent under Diagnostic Code 5256, 5261, or 5262. As indicated above, Diagnostic Code 5055 provides that where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to Diagnostic Codes 5256, 5261 or 5262. In this case, there has been no evidence of ankylosis; therefore, a rating under 5256 is not appropriate. In addition, there is no evidence indicating that flexion of the right knee is limited to 30 degrees or more, or that there is impairment of the tibia and fibula. Therefore, higher ratings are also not warranted under Diagnostic Codes 5261 or 5262. The Board thus finds that the 30 percent rating appropriately compensates the Veteran for the extent of his functional loss due to intermediate degrees of residual weakness, pain or limitation. In this case, the June 2017VA examination report clearly reflects that the Veteran's range of motion has been affected by pain and weakness, but the Veteran was still able to accomplish right knee range of motion as noted above. The Board has considered the Veteran's assertions in this regard, but emphasizes that they are not considered more persuasive than the objective clinical findings. Here, there is no persuasive evidence to support a finding that, at any point after December 1, 2015, any symptoms of pain, fatigue, weakness, lack of endurance, or incoordination have been so disabling - to include on repeated use or during flare-ups - to support assignment of a rating in excess of 30 percent under any potentially applicable Diagnostic Code. ORDER Entitlement to a rating in excess of 10 percent for internal derangement, right knee, prior to October 29, 2014, is denied. Entitlement to a rating in excess of 30 percent for status post right knee replacement from December 1, 2015, is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs