Citation Nr: 1828443 Decision Date: 05/07/18 Archive Date: 05/18/18 DOCKET NO. 12-28 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to a disability rating in excess of 20 percent for a left knee sprain with injury to lateral collateral ligament and lateral meniscus (left knee disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1970 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The August 2012 rating decision reduced the Veteran's disability rating from 20 percent disabling to 10 percent disabling, effective November 1, 2012. During the pendency of the appeal, an August 2017 rating decision restored the Veteran's 20 percent disability rating for his service-connected left knee, effective November 1, 2012. Because the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In April 2017, the Board remanded this matter for further development. This appeal was processed using the Virtual VA/VBMS paperless claim processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. FINDING OF FACT The Veteran's left knee disability manifested by full extension with flexion limited to no less than 93 degrees; functional impairment resulting from the described painful motion and weakness is not equivalent to extension limited to 30 degrees or flexion limited to 15 degrees; the Veteran's left knee showed no evidence of ankylosis, recurrent subluxation or lateral instability, or impairment of the tibia and fibula. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5257, 5260, 5261 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). VA's duty to notify was satisfied by letters dated September 2012 and October 2012. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With respect to the duty to assist, the Veteran's service treatment records, identified private treatment records, and VA outpatient treatment records have been obtained. Moreover, the Veteran has been afforded adequate VA examinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the November 2017 examiner performed a physical examination of the Veteran, took into account the Veteran's statements and treatment records, and provided adequate information required for rating purposes. The Veteran has not identified any additional, existing evidence that could be obtained to substantiate his claim. The Board is also unaware of any such evidence. Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran. The Board also notes that neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). This claim was most recently remanded by the Board in April 2017. At that time, the RO was instructed as follows: (1) to retrieve outstanding medical records, (2) schedule the Veteran for a VA examination to determine the current severity of his service-connected left knee disability, and (3) issue a Supplemental Statement of the Case (SSOC) if the claims remained denied. A claimant has the right to substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims Court (Court) or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see also 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). Here, the outstanding medical records were obtained and associated with the record. The Veteran was scheduled for a VA examination to determine the severity of his service connected left knee disability. The claim was subsequently readjudicated, and an SSOC was issued in December 2017. As such, the Board finds that there has been substantial compliance with its April 2017 remand directives. The Board will now review the merits of the Veteran's claims. II. Increase Rating Claim The Veteran seeks a disability rating greater than 20 percent for his service-connected left knee disability. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's service connected left knee disability is rated under Diagnostic Code 5261 and has been assigned a 20 percent disability rating, effective August 17, 2017. However, the Board notes that the Veteran was rated under Diagnostic Code 5257 at a 20 percent disability rating from August 24, 2004 to August 14, 2017 for his service-connected left knee disability. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. DC 5010 states that arthritis, due to trauma, substantiated by X-ray findings, is to be rated as degenerative arthritis under DC 5003. Under DC 5003, 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 DC 5260 (limitation of flexion of the leg) and DC 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 assigned 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 assigned 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. 3 8 C.F.R. § 4.71a, DC 5003. Under DC 5257, used for rating instability of the knee, a 10 percent disability rating is assigned for other impairment of the knee, where recurrent subluxation or lateral instability is mild; a 20 percent disability rating is assigned when such impairment is moderate; and a 30 percent disability rating is assigned when such impairment is severe. 38 C.F.R. § 4.71a, DC 5257. Under DC 5258, a 10 percent disability evaluation is assigned for removal of semilunar cartilage that is symptomatic and a 20 percent disability rating is assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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 severe by VA examiners and others, although an element to be considered by the Board, is not necessarily dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under DC 5260, a 10 percent disability rating is assigned when flexion of the knee is limited to 45 degrees; a 20 percent disability rating is assigned when flexion is limited to 30 degrees; and a 30 percent disability rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a 10 percent disability rating is assigned when extension is limited to 10 degrees; a 20 percent disability rating is assigned when extension is limited to 15 degrees; and a 30 percent disability rating is assigned when extension is limited to 20 degrees. 38 C.F.R. § 4.71a, DC 5261. 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. 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. 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, VA 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, and 4.59 must be considered. 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 Veteran was afforded a VA medical examination in April 2012. The Veteran reported that the left knee had locked up the day prior to the examination. He had not had surgery but was told that at some point he would need it. When he had pain in the left knee it is mainly on the medial lateral side of the patella. He did not take specific medications but moved his leg to prevent it from locking up. He has had swelling of the left knee. He had difficulty getting into and out of a boat when fishing. He almost had to get down onto his knees to get into a boat. There were no prior dislocations but the left knee was reported to lock up. He reported that he tried a brace in the past but it did not really help. The Veteran reported flare-ups. He stated that steps or deep knee bends will bother him. Physical examination of the left knee revealed 130 degrees of flexion with no objective evidence of pain, and no limitation of extension (0 degrees). There was no limitation of extension and no objective evidence of painful motion. Repetitive use testing revealed no loss of range of motion. The Veteran was noted to have functional impairment described as sitting with his legs extended out. He also subjectively reported that the knee wants to give out. There was tenderness or pain to palpation for joint line or soft tissue of the left knee. Muscle strengths were normal on the left. Joint stability tests, including the Lachman, Posterior Drawer, and Medial-lateral, were normal. There was no evidence or history of recurrent patellar subluxation/dislocation. The Veteran did not have any "shin splints," stress fractures, chronic exertional compartment syndrome or any other tibia and/or fibular impairment. The Veteran did not have any meniscal conditions. The Veteran had not had surgery. Physical examination of the knees revealed no heat, warmth, or edema. There was positive crepitus bilaterally. The left knee revealed tenderness on the medial aspect through the posterior, which was a nonspecific pain. It was difficult to assess the lower extremity pulses secondary to edema. Strength was 5 out of 5. Stability testing was slightly difficult secondary to body habitus but there was no current notation of instability. The Veteran did not use assistive devices. There was evidence of degenerative or traumatic arthritis in both knees on x-ray. There was no x-ray evidence of patellar subluxation. There were no other significant diagnostic test findings or results. The examiner noted that the Veteran's knee disability did not impact on the Veteran's ability to work. The Veteran was provided with a VA knee examination in December 2012. This particular examination was focused on the Veteran's right knee, but also provided findings related to the left knee. Physical examination of the left knee revealed 115 degrees of flexion and 0 degrees of left knee extension. There was no objective evidence of painful motion on flexion or extension. Repetitive-use range of motion testing reveled 115 degrees of flexion and a full range of left knee extension. The examiner noted less movement than normal and weakened movement in both knees. There was no tenderness or pain to palpation for the joint line or soft tissues of either knee. The Veteran exhibited active movement against gravity in his left knee. The Veteran had a normal Lachman's test, Posterior drawer test, and medial0lateral instability test. There was no evidence of recurrent patellar subluxation/dislocation. The examiner noted that the Veteran reported the use of a motorized cart, but was able to walk during the examination. The June 2015 examination report confirmed diagnoses of a left knee sprain and degenerative arthritis. The Veteran reported experiencing chronic knee pain in both knees that ranged from dull to sharp. The Veteran reported snapping, cracking and popping sensation in his left knee. The Veteran also reported that the pain used to prevent him from sleeping. The Veteran denied any redness of the left knee, but reported swelling. The Veteran provided that his knee pain is worst in the winter. The examiner observed the Veteran's gait to be normal without any limping of swelling. The examiner noted that the Veteran was overweight. The Veteran did not report any flare-ups of the left knee, functional loss, or functional impairment of the joint. Physical examination of the left knee revealed 130 degrees of flexion. The examiner noted that the Veteran could not bend his knee further because of pain and body habitus. Left knee extension was 130 to 0 degrees. There was no evidence of pain with weight-bearing or objective evidence of crepitus. The Veteran was able to perform repetitive use testing, but there was no additional functional loss or range of motion. The examiner noted that the Veteran's examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability. The Veteran's muscle strength was normal in his left knee. There was no ankylosis in the left knee. There was no history of recurrent subluxation, recurrent effusion or lateral instability. All testing of the Veteran's left knee stability yielded normal results. The Veteran never had a meniscus (semilunar cartilage) condition. The Veteran provided that he did not use any assistive devices due to his left knee. X-rays confirmed the Veteran's diagnosis of degenerative arthritis. The examiner noted that the Veteran's functional impact is limited to due to the inability to walk more than a mile and has difficulty going down steps. The Veteran was afforded a VA Knee and Lower Leg Condition examination in August 2017. Physical examination of the left knee revealed flexion of 14 to 90 degrees and an extension of 90 to 14 degrees. The examination of the right knee revealed flexion of 8 to 90 degrees and an extension of 90 to 8 degrees. The Veteran noted pain on flexion, extension, and weight bearing. The examiner noted objective evidence of localized tenderness or pain of the joint or associated soft tissue for the left knee. Specifically, the Veteran reported palpation to the anterior, lateral, medial, and below the patella of the left knee. The severity was described as moderate to severe. The Veteran was unable to perform repetitive-use testing for either knee due to pain. The examiner noted swelling, instability of station, disturbance of locomotion, interference with sitting and standing as additional contributing factors of the Veteran's left knee disability. The Veteran's muscle strength of the left knee was normal on flexion and extension. There was no evidence of muscle atrophy, ankylosis, recurrent subluxation, lateral instability, and recurrent effusion. The Veteran's left knee instability testing yielded a normal Lachman test, Posterior drawer test, Medial instability, and Lateral instability. The examiner noted the Veteran used a brace, shower chair, and a ladder to assist him. The examiner noted that the Veteran's knee disability did impact his ability to perform occupational tasks due to the inability to bend, squat, kneel, or lift any objects from floor level. Moreover, the Veteran required accommodations for performing ambulatory tasks due to limitations with walking, driving and climbing stairs. The examiner also noted that the Veteran's obesity contributed to the Veteran's knee pain and disability. Both the left and right knee presented objective evidence of pain when used in non-weight bearing. Passive range of motion testing yield the same results as active range of motion testing with the right knee with an flexion of 8 to 96 degrees and extension of 96 to 8 degrees, and the left knee yielding flexion of 14 to 93 degrees and extension of 93 to 14 degrees. The Veteran was afforded another VA knee examination in November 2017. The examiner confirmed the Veteran's diagnosis of residuals of a left knee sprain. The Veteran reported chronic knee pain. Physical examination of the left knee revealed flexion of 0 to 110 degrees and an extension of 110 to 0 degrees. The examination of the right knee revealed flexion of 0 to 110 degrees and an extension of 110 to 0 degrees. The examiner provided that pain and morbid obesity contributed to the Veteran's range of motion testing results. There was no evidence of pain on weight bearing, or objective evidence of crepitus. However, there was evidence of localized tenderness or pain on palpation of the joint. The Veteran was able to perform repetitive-use testing for the left and right knee. Muscle strength was noted to be normal in both the left and right knee. There was no objective evidence of ankylosis, recurrent subluxation, lateral instability, recurrent effusion, or tibia or fibula impairment. The Veteran's left knee instability testing yielded a normal Lachman test, Posterior drawer test, Medial instability, and Lateral instability. The Veteran did not have a semilunar cartilage condition. There was no evidence of pain on passive range of motion testing. Additionally, there was no pain with non-weight bearing for both knees, as well. Based on a review of the evidence of the record, the Board finds that the Veteran's service-connected left knee disability has been correctly rated as 20 percent disabling. With regards to whether the Veteran is entitled to a disability rating greater than 20 percent under Diagnostic Code 5261 for limitation of extension. Under Diagnostic 5261, a 20 percent disability rating is assigned when extension is limited to 15 degrees; and a 30 percent disability rating is assigned when extension is limited to 20 degrees. 38 C.F.R. § 4.71a, DC 5261. During the appeal period, the most the Veteran's extension has been limited is 14 degrees. With that being the case, the Board finds that a disability rating greater than 20 percent for limitation of extension is not warranted because the Veteran extension was never limited to 20 degrees or more. Turning to whether a disability rating greater than 20 percent for the Veteran's left disability under Diagnostic Code 5257 for moderate recurrent subluxation or lateral instability, the Board finds that the objective medical evidence does not warrant a disability rating in excess of 20 percent. Under DC 5257, used for rating instability of the knee, a 10 percent disability rating is assigned for other impairment of the knee, where recurrent subluxation or lateral instability is mild; a 20 percent disability rating is assigned when such impairment is moderate; and a 30 percent disability rating is assigned when such impairment is severe. 38 C.F.R. § 4.71a, DC 5257. During the period on appeal, the objective medical evidence does not indicate that the Veteran suffered from a severe level of recurrent subluxation or lateral instability. The Veteran's left knee instability testing consistently yielded normal Lachman, Posterior drawer, Medial instability, and Lateral instability testing results. Additionally, there was no evidence of any recurrent subluxation or lateral instability. Although the Veteran reported the use of assistive devices, such as a knee brace shower chair, and ladder, during this period, the Board points out that the use of an assistive device does not, by itself denote knee instability. Thus, a disability rating in excess of 20 percent under Diagnostic Code 5257 is not warranted. The Board will now consider whether an increased evaluation would be in order under other relevant diagnostic codes. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Board finds that higher evaluations cannot be assigned under Diagnostic Codes 5256, 5259, 5260, and 5262. With regards to Diagnostic Code 5256 (knee ankylosis)), there is no objective evidence that the Veteran suffers from ankylosis. Diagnostic Code 5259 is not applicable because there is no objective evidence of symptomatic removal of semilunar cartilage. Diagnostic Code 5262 is not applicable because the Veteran does not have an impairment of his tibia or fibula. With regards to Diagnostic Codes 5260 (limitation of flexion), the Veteran cannot be assigned a higher evaluation under the aforementioned code. The Veteran's left knee flexion has been measured at a range from 130 degrees to 93 degrees. Without a limitation of flexion to at least 60 degrees, a compensable rating cannot be assigned for limitation of flexion. Accordingly, a rating based on limitation of flexion is not appropriate in this matter. See 38 C.F.R. § 4.71a, Diagnostic Code 5160. Additionally, prior x-rays of the Veteran's left knee were positive for osteoarthritis combined with evidence of painful motion. The diagnosis of arthritis coupled with the aforementioned symptoms engages Diagnostic Code 5003, which provides that evaluation of traumatic arthritis, shall be on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved.). In our case, however, the Veteran does have a compensable rating under Diagnostic Code 5261 due to limitation of extension, the granting of disability evaluation under Diagnostic Code 5261 would constitute impermissible pyramiding because the Veteran already receives 10 percent under 38 C.F.R. § 4.71, Diagnostic Codes 5257 for limited and painful motion. Thus, a rating pursuant to Diagnostic Code 5003 is not warranted in this case. In sum, the Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the current rating and that the Veteran's service-connected left knee disability does not meet any applicable rating criteria for a disability rating in excess of 20 percent. Neither the Veteran nor his representative has raised any issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). ORDER Entitlement to a disability rating in excess of 20 percent for a left knee disability is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs