Citation Nr: 1815205 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 09-28 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for limitation of function due to arthritis from a left knee disability, claimed as medial meniscus tear and torn ACL with residual arthralgia, to include extraschedular consideration. 2. Entitlement to an initial disability rating in excess of 10 percent for symptomatic removal of the semilunar cartilage of the left knee, to include extraschedular consideration. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel INTRODUCTION The Veteran had active service from December 1976 to May 1977 and from May 2001 to February 2003. He also served with the Army National Guard with periods of active duty for training (ACDUTRA). Special orders associated with the claims file show that the Veteran was authorized to perform active duty for special work (ADSW) in Honduras from January 1998 to June 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2010, the Veteran presented testimony at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2011 and July 2014, the Board remanded the claim for further development. In November 2015, the Board, in pertinent part, denied entitlement to a rating in excess of 10 percent based on recurrent subluxation or lateral instability, awarded a separate10 percent disability rating for symptomatic removal of the semilunar cartilage, and also awarded separate 10 percent rating for limitation of function due to arthritis. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2017 Memorandum Decision, the Court affirmed the Board's decision with regard to entitlement to a higher rating under Diagnostic Code 5257 and vacated the remainder of the Board's November 2015 decision for the reasons discussed more fully below. In September 2017, the Board remanded this issue for a new VA examination. The Veteran was afforded a new examination in September 2017. The Board finds the examination is adequate for rating purposes and complied with the September 2017 remand order. Accordingly, the Board finds that the remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). 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 The Veteran's left knee disability has exhibited flexion to no worse than 60 degrees and extension to no worse than zero degrees, even taking into account the Veteran's complaints of pain, weakened movement, an excess fatigability; the left knee disability has not been manifested by ankylosis, dislocated semilunar cartilage, impairment of the tibia and fibula with moderate knee or ankle disability, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of function due to arthritis from a left knee disability have not all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5003, 5256-5263 (2017). 2. The criteria for a rating in excess of 10 percent for symptomatic removal of the semilunar cartilage of the left knee have not all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5259. REASONS AND BASES FOR FINDING AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under DCs 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under DC 5257, the Veteran must also have limitation of motion under DCs 5260 or 5261 in order to obtain a separate rating for arthritis. If the Veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also held that, if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under DC 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under DCs 5260 and 5261. Painful motion may add to the actual limitation of motion so as to warrant a rating under DCs 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under DC 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In addition, the VA General Counsel has held that separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). In addition, the United States Court of Appeals for Veterans Claims has held that evaluation of a knee disability under DCs 5257 or 5261 or both does not, as a matter of law, preclude a separate evaluation of a meniscal disability of the same knee pursuant to DCs 5258 or 5259. See Lyles v. Shulkin, No. 16-0994, 2017 U.S. App. Vet. Claims LEXIS 1704 (Vet. App. Nov. 29, 2017). The Veteran's left knee disability is currently evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5003-5260 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned, the additional code is shown after the hyphen). The left knee disability has also been awarded a separate 10 percent rating pursuant to 38 C.F.R. § 4.71a, DC 5259 and an additional separate 10 percent rating pursuant to 38 C.F.R. § 4.71a, DC 5299-5257. The November 2015 Board decision found that the Veteran was not entitled to a rating in excess of 10 percent under DC 5257 for recurrent subluxation or lateral instability. In the April 2017 Memorandum Decision, the Court affirmed the Board's denial of a higher disability rating under DC 5257. Therefore, this issue is no longer before the Board. The Board also notes that 10 percent disabling is the maximum rating the Veteran can receive under DC 5259 on a schedular basis. DC 5003 states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected, which in this case would be DCs 5260 (limitation of flexion of the leg) and 5261 (limitation of extension of the leg). When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. 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 evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71(a), DC 5003. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the knee to 60 degrees. A 10 percent disability evaluation is assigned when flexion is limited to 45 degrees. A 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability evaluation is warranted when flexion is limited to 15 degrees. Normal range of motion for the knee is defined as follows: flexion to 140 degrees and extension to zero degrees. 38 C.F.R. § 4.71, Plate II. The Board concludes that a disability evaluation in excess of 10 percent under DC 5003-5260 for the service-connected left knee disability is not warranted. The Veteran has not been shown to have limitation of flexion to 30 degrees in the left knee to warrant a disability rating in excess of 10 percent disabling, as discussed below. The Board has also considered whether the Veteran is entitled to a separate compensable evaluation under DC 5261. For a compensable evaluation to be granted in this case, the Veteran must demonstrate extension of the left knee limited to at least 10 degrees as per DC 5261. The Veteran has not been shown to have a limitation of extension to 10 degrees in the left knee to warrant a separate compensable rating under DC 5261. At the September 2017 VA examination, the Veteran exhibited flexion to 140 degrees and extension to zero degrees with pain, but with no additional decrease in range of motion with pain or repetition. At the September 2014 VA examination, the Veteran exhibited flexion to 130 degrees with painful motion beginning at 110 degrees. The Veteran exhibited extension to zero degrees with no evidence of painful motion or additional decrease in range of motion with repetition. The April 2009 VA examination showed flexion from 60 to 140 degrees and normal extension to zero degrees. The March 2007 VA examination indicates flexion from 60 to 140 degrees with pain noted at 60 degrees, and repetitive testing showed additional loss of range of motion from 70 to 120 degrees with pain noted. Extension was noted from 120 to 60 degrees with pain noted at 80 degrees. Repetitive use testing showed loss of range of motion from 120 degrees to 70 degrees with pain noted. The reporting of the range of motion in the 2007 and 2009 VA examination reports is atypical. The 2007 VA examiner's report of flexion from 60 to 140 degrees and extension from 120 to 60 degrees, standing alone, could be interpreted as the Veteran having motion only between these points. However, such interpretation does not make sense because the starting point for extension is less than the ending point for flexion. The logical interpretation is that the examiner was describing painful motion. Also, reading the data as motion that does not include extension past 60 degrees is inconsistent with the remainder of the report, including the statement that the Veteran would be able to participate in light physical activity but should avoid squatting or lifting. The same is true with regard to the 2009 report. There, the extension is listed as to zero degrees but flexion is listed as from 60 to 140 degrees. Viewing this as flexion only between 60 and 140 degrees does not account for how the Veteran went from the normal zero angle to the 60 degree angle. The interpretation of extension to zero degrees and flexion starting at zero degrees, with pain from 60 to 140 degrees of flexion, and pain during extension, is also consistent with the Veteran's own report of his symptoms. During the hearing before the undersigned, the Veteran reported that he could not bend his knee all the way and had problems going up and downs steps and with this knee giving way. He also referred to the effect of his knee disabilities on social activities, explaining that he was no longer comfortable on the dance floor because of the knee feeling wobbly. If his motion did not include from zero to 60 degrees of flexion and 60 to zero degrees of extension, his report of symptoms would have been substantially different. Additionally, the report of a July 2005 examination signed by a physician of MDSI Physician Services shows that the Veteran had motion of both knees from zero degrees of extension to 130 degrees of flexion. There is no evidence that he lost motion from zero to 60 degrees between July 2005 and February 2007. Thus, the Board concludes that the reported range of motion in the 2007 and 2009 VA examinations refers to painful motion, and that the Veteran had motion from zero to 60 degrees, both in flexion and extension, at the time of each examination. Based on the above evidence, the Veteran has not demonstrated a limitation of flexion to 30 degrees and a limitation of extension to 10 degrees, even considering painful motion and any decrease in motion after repetition. As such, the Veteran is not entitled to a rating in excess of 10 percent under DC 5003-5260 or a separate compensable rating under DC 5261. The Board has also considered whether a higher rating is available under DC 5003. A rating in excess of 10 percent requires the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. The left knee is considered one major joint, and the Veteran has not reported incapacitating exacerbations of his symptoms. 38 C.F.R. § 4.45(f). Therefore, a rating in excess of 10 percent is not supported under DC 5003. The Board finds that higher ratings are not warranted under any alternative provisions for the left knee disability. DC 5256 provides for a higher rating, however, application of this code is inappropriate as there is no diagnosis of ankylosis of the knee. Furthermore, the Veteran may not be rated by analogy to this code as he has not suffered functional immobility of the left knee. The Veteran does not have dislocated cartilage with frequent episodes of "locking," pain, and effusion, and is therefore not entitled to a separate rating under DC 5258. Additionally, there are no objective findings of impairment of the tibia and fibula, thus there is no basis for disability ratings under DC 5262. The Veteran's left knee does not have genu recurvatum, therefore DC 5263 is not applicable. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. An additional range of motion loss for pain, excess fatigability, decreased functional ability, etc. is not warranted for the left knee. In this regard, the Board observes that the Veteran has complained of pain, weakness, and excess fatigability in his left knee. However, the Veteran's range of motion has been shown to be no worse than flexion to 60 degrees and extension at zero degrees following repetitive motion and considering painful motion on any of the VA examinations. Although the September 2017 VA examiner noted pain during the Veteran's range of motion exercises, she did not observe additional limitations of motion following repetitive motion and indicated that the pain did not result in or cause functional loss. Thus, the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Board finds that the effect of the Veteran's symptomatology is contemplated in the 10 percent disability evaluation assigned. Regarding flare-ups, the Board notes that the Court found the September 2014, April 2009, and March 2007 VA examinations were inadequate as they did not opine whether pain could significantly limit functional ability on the Veteran's previously reported flare-ups. The Veteran was afforded a new VA examination in September 2017. The Veteran did not report flare-ups on the September 2017 VA examination. However, the examiner was specifically asked to interview the Veteran as to the nature of his flare-ups that were reported on the previous VA examinations. The examiner stated that previous flares increased the Veteran's knee pain, which the Veteran described as sharp. The Veteran reported that his current pain is now sharp and constant. As such, based on the Veteran's statements, he no longer experiences flare-ups because his current pain (as reported on the September 2017 VA examination) is at the same level of severity that his prior flare-ups were at. Therefore, as the Veteran reported constant sharp pain on the examination, which is consistent with the pain he previously experienced during flare-ups, the Board finds that September 2017 examination adequately demonstrates the Veteran's functional level during prior flare-ups. The September 2017 examination indicated the Veteran's flexion was to 140 degrees and extension was to zero degrees, which is the normal range of motion of the knee. The examiner noted pain on both flexion and extension, but noted that pain did not result in or cause functional loss. Although pain may cause functional loss, pain itself is not functional loss that is compensable for VA benefit purposes. Mitchell, 25 Vet. App. at 37. As such, the September 2017 examination shows that the Veteran's functional ability would not have been significantly limited by pain during flare-ups to award entitlement in excess of 10 percent disabling. The Board acknowledges that the Veteran contends that his service-connected joint disease of the left knee warrants a higher evaluation. In determining the actual degree of disability, however, contemporaneous medical records and an objective examination by a health professional are more probative of the degree of the Veteran's impairment. This is particularly so where the rating criteria require analysis of the clinically significant symptoms and objectively measurable criteria, like range of motion. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds that the medical opinions of this Veteran, who lacks medical training, are not competent evidence of the clinical significance of his symptoms. Id. Based on the above, the Board finds that an initial evaluation in excess of 10 percent is not warranted. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. II. Extraschedular Consideration The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. In determining whether a referral for extraschedular evaluation is warranted, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board finds that the Veteran's symptoms associated with his left knee disability, to include weakness, excess fatigability, and pain, do not constitute an exceptional or unusual disability picture. As noted by the Court, the 2014 VA examination indicated that the Veteran exhibited weakened movement, excess fatigability, and pain on movement. For disabilities of the joint in particular, 38 C.F.R. § 4.45 specifically identifies weakened movement, excess fatigability, and pain as factors of disability. In Thompson v. McDonald, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) explained that "[g]iven this regulatory framework, it is clear that the guidance of § 4.40 is intended to be used in understanding the nature of a veteran's disability, after which a rating is determined based on the § 4.71a criteria. 815 F.3d 781, 785." The Federal Circuit went on to explain "Section 4.40, as discussed above, makes clear that disability may occur if a veteran cannot perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Section 4.40 also makes clear that functional loss may be due to pain and that pain may render a part seriously disabled. When evaluating a disability, § 4.40 provides a broad canvas. However, whatever the background, an applicant for disability benefits is rated based on the criteria set forth in § 4.71a." Although the Federal Circuit was discussing § 4.40, given the regulatory framework the discussion is applicable to § 4.45. Even beyond the explanation provided by the Federal Circuit that the more general provisions are meant to inform application of the more specific ones at § 4.71a, the plain language of 38 C.F.R. § 3.321(b) does not allow for an extraschedular evaluation based solely on symptoms of fatigability and weakness. Section 3.321(b), states that a VA official is authorized to approve an extraschedular evaluation with regard to exceptional cases and refers also to unusual or exceptional disability pictures. Section 4.40 and 4.45 have been in the rating schedule for decades and therefore it cannot be said that the disability picture of this Veteran is unusual or exceptional. Additionally, the Veteran's left knee was recently reexamined on September 30, 2017. In that examination report, the examiner answered "No" to the question of whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time. Fatigability and lack of endurance are so close in meaning as to make the terms synonymous. The Veteran does not contend that his knee is improving so referral for extraschedular consideration would amount to asking for a higher rating for symptoms that do not significantly limit functional ability. As the purpose of VA disability compensation benefits is to compensate for the average impairment in earning capacity, it would be improper to refer the case for insignificant limitation of function. The Court stated in the April 2017 Memorandum Decision that the Board did not cite to any authority in determining that the Veteran's use of a knee brace is not a symptom, but rather a method of addressing a symptom. On remand, the Board specifically asked the VA examiner to consider whether the Veteran's use of brace or cane in connection with his left knee disability was a symptom of his disability or method of addressing his symptoms. The 2017 VA examiner stated that the Veteran's use of a brace is a method to address his symptoms. As such, the Board finds the VA examiner's statement probative, as she is a medical professional, and finds that the use of a brace is not a symptom, and therefore does not constitute an exceptional or unusual disability picture. In addition, the April 2017 Memorandum Decision noted the March 2007 VA examiner's statement that the Veteran's "knee does have functional impairment which approximates 35-40%." The Court found that the Board did not adequately explain the meaning of this observation or how it is accounted for the by the DCs related to loss of range of motion. The Board notes that immediately following the sentence stating the Veteran's functional impairment approximated 35-40%, the 2007 VA examiner stated that the Veteran is most likely not able to participate in heavy physical activity, but that sedentary and light jobs should be ideal. Therefore, the Board finds that the meaning of the examiner's statement that the Veteran's knee has a 35-40% functional impairment is that the Veteran is likely unable to perform heavy physical activity, but is still likely able to perform light and sedentary activity. As noted above, the schedular ratings criteria, including the DCs related to loss of range of motion, contemplates this type of functional limitation, and the Veteran is compensated for this type of functional loss based on his current rating. As such, the March 2007 examiner's opinion does not indicate that the Veteran's disability constitutes an exceptional or unusual disability picture. For the reasons stated above, the Board declines to refer this case for extraschedular consideration. ORDER Entitlement to a rating in excess of 10 percent for limitation of function due to arthritis from a left knee disability, claimed as medial meniscus tear and torn ACL with residual arthralgia, to include extraschedular consideration, is denied. Entitlement to an initial disability rating in excess of 10 percent for symptomatic removal of the semilunar cartilage of the left knee, to include extraschedular consideration, is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs