Citation Nr: 1809016 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 09-48 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial compensable disability rating for service-connected right knee patellofemoral syndrome (herein right knee disability) for the period prior to October 11, 2011, and a disability rating in excess of 10 percent for the period thereafter. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Erin J. Carroll, Associate Counsel INTRODUCTION The Veteran had active duty service from March 2005 to August 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted entitlement to service connection for a right knee disability and assigned a noncompensable disability rating, effective August 9, 2008. A November 2011 rating decision by the same RO increased the right knee disability rating to 10 percent, effective October 11, 2011. The Veteran testified at a July 2014 Board hearing before the undersigned Veterans Law Judge in Winston-Salem, North Carolina. A transcript of the hearing is of record. The Veteran's claim was remanded by the Board in September 2014, December 2014, August 2015, and March 2017. The August 2015 and March 2017 remands instructed the RO to issue a copy of the November 2014 supplemental statement of the case (SSOC) to the Veteran at his correct mailing address. A July 2017 notification letter indicates that the November 2014 SSOC was, in fact, mailed to the Veteran. The Board notes that the March 2017 remand was returned as undeliverable, as it appears the Veteran's mailing address was updated in June 2017. However, as the RO sent him a copy of the November 2014 SSOC and the Veteran attended the new VA examination per the remand directives, it appears that such was harmless error since there is no reasonable possibility that the content of the remand would aid in substantiating the claim. Any error in the sequence of events or content of the remand is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). FINDINGS OF FACT 1. Prior to October 11, 2011, the Veteran's right knee disability was manifested by flexion limited to no less than 130 degrees, even with contemplation of functional loss due to pain, fatigability, incoordination, pain on movement, and weakness, or as a result of repetitive motion or flare-ups. 2. Since October 11, 2011, the Veteran's right knee disability has been manifested by flexion limited to no less than 120 degrees, with contemplation of functional loss due to pain, fatigability, incoordination, pain on movement, weakness, or as a result of repetitive motion or flare-ups. 3. At no point during the appeal period has there been objective evidence of lateral instability or limitation of extension. CONCLUSIONS OF LAW 1. Prior to October 11, 2011, the criteria for a compensable rating for the right knee disability for limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5260 (2017). 2. From October 11, 2011, the criteria for a rating in excess of 10 percent for the right knee disability for limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71(a), DC 5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012) 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of his appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). II. Increased Rating for a Right Knee Disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. While the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant DCs for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and lateral instability and recurrent subluxation of the knee. The Board will explore all possibilities in this case. DC 5260 rates based on limitation of flexion. When flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. However, where the Veteran shows noncompensable limitation of motion, but painful motion and functional impairment are evident, the Veteran is entitled to a 10 percent rating. DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, DC 5257 (2017). Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. Other DCs pertaining to the knee include DC 5258, under which a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. Because DCs 5258 and 5259 have been interpreted as already contemplating limitation of motion of the knee generally (which means it contemplates limitation of flexion and extension), the law does not allow for a separate rating under DCs 5259 and 5260 and/or 5261, because that would be compensating the same limitation of motion more than once. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, DC 5262 (2017), and for knee replacement at DC 5055. As the Veteran has not had a knee replacement, or impairment of the tibia and fibula, these codes are inapplicable. Evaluation The Veteran contends that the severity of his right knee disability warrants a higher rating. He was initially assigned a noncompensable disability rating in March 2009. In a November 2011 rating decision, the RO awarded a 10 percent disability rating, effective October 11, 2011. The Veteran's right knee disability is evaluated pursuant to DC 5260 for limitation of flexion. 38 C.F.R. § 4.27. The evidence demonstrates that the Veteran's right knee flexion has been limited to 130 degrees both before and after October 11, 2011. Even in consideration of pain, the Board finds that he is not entitled to a compensable rating prior to October 11, 2011, or a rating in excess of 10 percent since that time under DC 5260. At the July 2014 Board hearing, the Veteran testified that he experienced right knee symptoms including popping, inflammation, numbness, tingling, swelling, limitation of motion, and pain, which worsened during cold weather. He stated that his knee occasionally felt unstable, but that he had not fallen due to instability. During a January 2009 VA examination for cold injury residuals, the Veteran reported experiencing pain, stiffness, and a lack of endurance in his knee. He denied weakness, swelling, heat, redness, instability, locking, and fatigability. He did not use any assistive devices and denied any history of surgery. There had been no episodes of dislocation or subluxation. The examiner noted crepitus and a popping sound when squatting. Flexion was to 130 degrees, while extension was normal at zero degrees. There was no loss of motion secondary to pain, weakness, or lack of endurance with repetition. At a February 2009 general medical VA examination, the Veteran's right knee demonstrated flexion to 140 degrees, both on active and passive motion, again with normal extension. There was no evidence of pain on motion, and no change in motion after repetition. The examiner noted that the collateral and cruciate ligaments were intact, as were the lateral and medial menisci. A November 2010 VA treatment record noted the Veteran's reports of instability in his right knee. However, the treatment provider determined that there was no evidence of instability at that time. In October 2011, the Veteran was afforded a VA examination for his right knee. He reported experiencing pain and flare-ups that occurred twice weekly, lasting for several hours at a time. Flexion was to 130 degrees with evidence of painful motion at 120 degrees. There was no limitation of extension. The Veteran was able to perform repetitive use testing with no additional limitation of motion or functional loss. There was no evidence of weakened movement, excess fatigability, incoordination, less or more movement than normal, pain on movement, swelling, deformity, atrophy, instability, disturbance of locomotion, or interference with sitting, standing, or weight bearing. The examiner noted tenderness or pain to palpation for the joint line or soft tissue of the right knee. Muscle strength and joint stability testing were normal. There was no evidence or history of patellar subluxation or dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, or any other tibial/fibial impairment. The Veteran did not have any meniscal conditions or a history of any meniscal-related surgeries. He had not had total knee joint replacement surgery. The examiner further noted mild tenderness over the right collateral ligaments. No assistive devices were used to aid with locomotion. Most recently, in July 2017, the Veteran underwent a VA examination to evaluate the severity of his right knee disability. He described experiencing flare-ups that resulted in pain and popping of the right knee. He also reported an inability to stand or walk for extended periods of time. Flexion was to 130 degrees with evidence of pain on active and passive motion, pain with weight bearing and non-weight bearing, and functional loss. Extension was normal at zero degrees. There was no objective evidence of crepitus or tenderness or pain to palpation for the joint line or soft tissue of the right knee. There was no additional loss of range of motion or functional limitation after repetitive use testing. The Veteran was not examined immediately after repetitive use over time or during a flare-up. The examiner indicated that there would be no additional loss of range of motion with repetitive use over time, but a predicted flexion of 120 degrees in the case of a flare-up. Additionally, pain, fatigue, and lack of endurance were noted to likely contribute to functional loss with repetitive use over time and during flare-ups. The examiner further indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and flare-ups. There was less movement than normal, but no evidence of weakened movement, swelling, deformity, atrophy, instability, disturbance of locomotion, or interference with sitting or standing. Muscle strength testing was normal, with no evidence of muscle atrophy. There was no ankylosis of the right knee. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal. There was no evidence or history of patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, or any other tibial/fibial impairment. There was no history of a right meniscal condition or any surgeries related to the right knee. No assistive devices were used to aid with locomotion. In this regard, the Board has considered whether pain, swelling, weakness, fatigue, incoordination, or flare-ups have resulted in additional functional loss at any point throughout the time periods on appeal. As demonstrated during the VA examinations of record, joint flexion has consistently been limited to between 140 and 120 degrees both before and after October 11, 2011. In the July 2017 medical opinion, the VA examiner reviewed the medical evidence and determined that the examination results were medically consistent with the Veteran's statements regarding the extent of additional limitations due to pain, weakness, fatigability, incoordination, and functional loss with repetitive use over time and flare-ups. As the Veteran was not observed after repetitive use over time or during a flare-up, at the time of the July 2017 VA examination, the examiner was unable to assess any additional functional loss in terms of range of motion loss, and, thus, it was infeasible to anticipate or predict limitation in function or motion, in specific degrees, during flare-ups, though he predicted limited flexion of 120 degrees. This level of limitation, however, is still contemplated by the 10 percent rating for limitation of flexion. A higher rating cannot be based on medical speculation and certainly not lay speculation. 38 C.F.R. § 3.102. Neither the Veteran nor the Board can speculate and arbitrarily pick a disability rating; there must be a basis in fact for the assigned rating. Id. Thus, a higher evaluation cannot be awarded based on speculation of additional functional loss during flare-ups. Therefore, the Board finds that such factors do not result in functional loss more nearly approximating flexion limited to 30 degrees in the right knee. See DeLuca, 8 Vet. App. at 207-08; Mitchell, 25 Vet. App. 32. Regarding extension, the VA examination reports prior to and since October 11, 2011, do not indicate limitation of extension at any point throughout the periods on appeal. Indeed, no limitation of extension was noted in any of the examination reports of record. Thus, there is no evidence indicating that the Veteran's extension of the right knee has ever been limited to 5 degrees or more, and a separate 10 percent rating for limitation of extension of the right knee is not warranted under DC 5261. The evidence shows additional right knee symptoms including subjective complaints of instability, as stated by the Veteran in a November 2010 VA treatment record and at the Board hearing. However, the November 2010 treatment provider found no objective evidence of right knee instability at that time. Furthermore, VA examiners also determined that there was no objective evidence or history of right knee lateral instability or subluxation, as joint stability testing was within normal limits during both knee examinations. Therefore, these symptoms are contemplated in the Veteran's disability rating under DC 5260. Thus, the Board finds that a separate rating is not warranted under DC 5257 for recurrent subluxation or lateral instability at any point on appeal. The Board further notes the Veteran's reports of popping of the right knee at the July 2014 hearing and July 2017 VA examination. The January 2009 VA examiner also documented popping of the right knee as a result of squatting. However, there is no indication that the popping is representative of frequent episodes of locking, nor is there a history of dislocated semilunar cartilage. Thus, a separate compensable rating under DC 5258 for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is not warranted. Likewise, there are no other symptoms noted in the record that would warrant alternative or additional ratings for the knee at any point throughout the periods on appeal. Accordingly, for the reasons stated above, the evidence is against a compensable disability rating prior to October 11, 2011, as well as a rating in excess of 10 percent thereafter for the right knee disability based on painful flexion under DC 5260. 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 (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 compensable disability rating for service-connected right knee disability for the period prior to October 11, 2011 is denied. Entitlement to a disability rating in excess of 10 percent for the service-connected right knee disability for the period after October 11, 2011 is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs