Citation Nr: 1808601 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 08-23 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased disability rating in excess of 10 percent before March 11, 2009 and in excess of 30 percent beginning March 11, 2009 for residuals of arthroscopic surgery of the right knee. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1990 to September 1991. This appeal arises before the Board of Veterans' Appeals (Board) from a February 2008 rating decision in which the Department of Veteran Affairs (VA) Philadelphia, Pennsylvania, Regional Office (RO), in part, continued a noncompensable rating for the service-connected residuals of arthroscopic surgery of the right knee. In July 2008, the RO increased the rating to 10 percent, effective on July 13, 2007. In a May 2009 decision review officer decision, the RO increased the rating evaluation to 30 percent disabling, effective March 11, 2009. The Board remanded this issue in July 2017 for a new VA examination. The Board notes that an August 2017 VA examination substantially complied with the July 2017 remand order. See 38 U.S.C. § 5103A(b) (2012), Stegall v. West, 11 Vet. App. 268 (1998), D'Aries v Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). In October 2009, the Veteran testified before a Veterans Law Judge, who has since retired, at a travel board hearing. A copy of the transcript has been associated with the claims file. In May 2017 correspondence, the Veteran was given the opportunity to request another hearing and notified that if he did not provide a response in 30 days, it would be assumed that he did not want another hearing. The Veteran did not respond to the letter, and the Board will therefore proceed. FINDINGS OF FACT 1. The competent evidence of record shows the Veteran suffered from painful motion of his right knee before March 11, 2009. 2. The competent evidence of record does not show that the Veteran suffered from right knee subluxation, instability, limited flexion, or limited extension before March 11, 2009. 3. The competent evidence of record shows that the Veteran suffered from right knee extension limited to 20 degrees as of March 11, 2009. 4. The competent evidence of record does not show that the Veteran suffered from right knee subluxation, instability, or flexion limited to 60 degrees from March 11, 2009. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of arthroscopic surgery of the right knee before March 11, 2009 have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261. 2. The criteria for a rating in excess of 30 percent for residuals of arthroscopic surgery of the right knee beginning March 11, 2009 have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A copy of the relevant laws and regulations governing the Veteran's claim was provided to him in the Statement of the Case dated July 2008 and supplemented in May 2009, December 2011, June 2016, and December 2017. Evidence The Veteran's treatment records reflect treatment for chronic right knee pain which caused an antalgic gait and required the Veteran to use a cane. Beyond prescribing medication to help with pain, the treatment records did not address the specific criteria of the rating schedule or demonstrate symptomatology that was outside what had been reported in the VA examinations. VA provided the Veteran with examinations of his right knee in January 2008, March 2009, September 2010, and August 2017. The January 2008 examiner noted the Veteran's complaints of moderate to severe right knee pain; reported use of a cane; trouble standing for long periods; trouble climbing and descending stairs; and trouble squatting. The examiner observed an antalgic gait and full range of right knee motion, from 0 to 140 degrees, with pain at 130 degrees. There was no change in range of motion after repeated use, no evidence of subluxation, and no evidence of instability. The range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance, except that pain prevented squatting. The Veteran denied flare ups. An x-ray was noted to show arthritis of the right knee. The March 2009 examiner noted the Veteran's complaints of constant severe right knee pain; trouble standing for long periods; trouble walking for more than a half hour; trouble climbing and descending stairs; and trouble squatting. The examiner observed an antalgic gait. Right knee range of motion included full flexion, but extension limited to 20 degrees and moderate to severe pain from 70 to 90 degrees. There was no change in range of motion after repeated use and no evidence of instability. Subluxation was not addressed by this examiner. The range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance. The Veteran denied flare ups. The September 2010 examiner noted the Veteran's complaints of constant moderate to severe right knee pain; stiffness; weakness; trouble standing and walking for more than 10 minutes; trouble climbing and descending stairs; and trouble squatting. The examiner observed an antalgic gait. Right knee range of motion included extension limited to 20 degrees, flexion from 20 to 100 degrees, and moderate to severe pain from 60 to 100 degrees. There was no change in range of motion after repeated use, no evidence of subluxation, and no evidence of instability. The range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance. The Veteran denied flare ups. The August 2017 examiner noted the Veteran's complaint of constant pain with antalgic gait and use of a cane. The examiner tested both knees in passive and active motion, as well as weight-bearing and nonweight-bearing conditions. The left, undamaged knee was normal in all tests with no pain noted. The right knee had range of motion with flexion from 0 to 100 degrees and full extension from 140 to 0 degrees. Pain was noted in all four tests of the right knee, but did not result in any additional loss of function. There was no change in range of motion after repeated use, no evidence of subluxation, and no evidence of instability. The range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance. The Veteran denied flare ups. The examiner opined that the Veteran could not do work requiring standing, walking, or lifting for "any amount of time." The Veteran and his spouse testified at a Board hearing in October 2009. Each described the Veteran's constant right knee pain and how it prevented him from engaging in activities, especially limiting his ability to play with his grandchildren. The Veteran indicated that total knee replacement had been discussed with his doctor's but was not scheduled. He stated that he took ibuprofen for pain and another drug to protect his stomach from the ibuprofen. The only symptom specifically described was pain. Before March 11, 2009 The Veteran is seeking a disability rating in excess of 10 percent for residuals of right knee arthroscopic surgery for the period before March 11, 2009. His 10 percent rating was based on painful motion as allowed by 38 C.F.R. § 4.59. To justify a 20 percent rating the evidence must show either flexion limited to 30 degrees or extension limited to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260, 5261. The evidence addressing the period before March 11, 2009 includes treatment records, the Veteran's statements, and the January 2008 VA examination. All of these sources agree that the Veteran experienced painful motion of his right knee due to residuals of his service-connected arthroscopic surgery. The Veteran made no statements regarding limited range of motion of his right knee before March 11, 2009 and his treatment records did not record any range of motion measurements for this period. The only recorded range of motion testing is from the January 2008 VA examination. That testing showed full range of motion, including flexion from 0 to 140 degrees and extension from 140 to 0 degrees. Pain was noted at 130 degrees, but did not cause any functional loss. While the Board does not question the severe pain experienced by the Veteran, it is bound to assign ratings by applying the facts of each case to the schedule contained in the law. The evidence does not support a rating in excess of 10 percent before March 11, 2009 because the Veteran experienced only painful movement, not a limited range of motion. Because the preponderance of the evidence is against the Veteran's claim for an increased rating, the Board must deny this claim. Beginning March 11, 2009 The Veteran is seeking a disability rating in excess of 30 percent for residuals of right knee arthroscopic surgery for the period beginning March 11, 2009. His 30 percent rating was based on extension limited to 20 degrees. See 38 C.F.R. § 4.71a, DC 5261. To justify a 40 percent rating the evidence must show extension limited to 30 degrees. Id. A separate compensable rating for limitation of flexion would require evidence of flexion limited to 45 degrees. See 38 C.F.R. § 4.71a, DC 5260. The evidence addressing the period beginning March 11, 2009 includes treatment records, the Veteran's statements, and VA examinations of March 2009, September 2010, and August 2017. The Veteran made no statements regarding limited range of motion of his right knee beginning March 11, 2009 and his treatment records did not record any range of motion measurements for this period. The VA examinations of March 2009 and September 2010 each recorded right knee extension limited to 20 degrees, while the August 2017 examination recorded an improved range of motion with full extension from 140 to 0 degrees. Pain was observed on each test, but did not cause any functional loss. Flexion was normal in the March 2009, limited to 100 degrees in September 2010, and again limited to 100 degrees in August 2017. While the Board does not question the severe pain and observed limitation of motion experienced by the Veteran, it is bound to assign ratings by applying the facts of each case to the schedule contained in the law. The evidence does not support a rating in excess of 30 percent beginning March 11, 2009 because the observed limitation of extension was to no more than 20 degrees since that date. Similarly, the observed limitation of flexion has been no less than 100 degrees. Because the preponderance of the evidence is against the Veteran's claim for an increased rating, the Board must deny this claim. Additional Considerations When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran's documented interference with standing, walking, squatting, weight-bearing, and difficulty ascending and descending stairs are specifically contemplated by the rating criteria for limitation of motion. See 38 C.F.R. § 4.45 (interference with sitting, standing, and weight-bearing are related considerations to painful motion). Further, the Board finds that these complaints, including the Veteran's use of a cane, are part of, similar to, and approximate, the symptoms of limited range of motion (i.e., difficulty walking, sitting, and limitation in activity), which include limitations of motion due to DeLuca factors such as pain on movement, weakened movement, and fatigability (i.e., needing medication, use of a cane and brace, difficulty standing or walking for prolonged periods due to knee pain). Comparing the Veteran's disability level and symptomatology of the right knee disability to the rating schedule, the Board finds that the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. Alternate Diagnostic Codes The Board has considered whether any other diagnostic codes would warrant a higher evaluation than currently staged under DC 5261. Further separate ratings are not warranted because there is no evidence of right knee ankylosis; dislocated semilunar cartilage; higher compensable limitation of flexion or extension of the right knee, with consideration of pain and the aforementioned DeLuca factors; impairment of the tibia and fibula; or genu recurvatum. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5260, 5261, 5262, 5263. ORDER Entitlement to an increased disability rating in excess of 10 percent before March 11, 2009 for residuals of arthroscopic surgery of the right knee is denied. Entitlement to an increased disability rating in excess of 30 percent beginning March 11, 2009 for residuals of arthroscopic surgery of the right knee is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs