Citation Nr: 1106161 Decision Date: 02/15/11 Archive Date: 02/28/11 DOCKET NO. 09-01 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a disability evaluation in excess of 10 percent for service-connected chronic right knee condition with osteoarthritis prior to December 1, 2008, and in excess of 20 percent since December 1, 2008. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sara Schinnerer, Associate Counsel INTRODUCTION The Veteran had active service from September 1992 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) from a February 2008 rating action of the Department of Veterans Affairs (VA), Regional Office (RO) in Wichita, Kansas, which, inter alia, denied a claim for increased rating for the right knee disability. In his Substantive Appeal, the Veteran specifically limited his appeal to that issue. In a June 2010 rating decision, the RO increased the Veteran's disability evaluation for the service-connected right knee from 10 to 20 percent disabling, effective, December 1, 2008. As the rating for the right knee is less than the maximum available rating, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Prior to December 1, 2008, the Veteran's service-connected right knee osteoarthritis disability is manifested by subjective complaints of pain and objective findings of slight instability. 2. Prior to December 1, 2008, there is x-ray evidence of arthritis of the right knee, with limited motion from 0 to 100 degrees and subjective complaints of painful motion. 3. Since December 1, 2008, there is x-ray evidence of arthritis of the right knee, with limited motion from 0 to 95 degrees and subjective complaints of painful motion; there is no objective evidence of ankylosis. 4. Since December 1, 2008, there is no evidence of more than slight lateral instability. CONCLUSIONS OF LAW 1. Prior to December 1, 2008, the criteria for a separate disability evaluation of 10 percent, but no more, for instability of the service-connected right knee have been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.71(a), Diagnostic Code 5257 (2010); VAOPGCPREC 23-97 (1997). 2. Prior to December 1, 2008, the criteria for a disability rating in excess of 10 percent for service-connected right knee osteoarthritis (separate from the 10 percent rating for instability of the right knee) have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.40, 4.45, 4.459, 4.71a, Diagnostic Codes 5003, 5260 (2010). 3. Since December 1, 2008, the criteria for a disability rating in excess of 10 percent for service-connected right knee osteoarthritis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.40, 4.45, 4.459, 4.71a, Diagnostic Codes 5003, 5260 (2010). 4. Since December 1, 2008, the criteria for a disability rating in excess of 10 percent for instability of the service-connected right knee have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.40, 4.45, 4.459, 4.71a, Diagnostic Code 5257 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Substantially compliant notice was sent in December 2007 and May 2008 letters and the claim was readjudicated in October 2008, January 2009, and August 2010 supplemental statements of the case. Mayfield, 444 F.3d at 1333. As for the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran, whereas VA has obtained service treatment records, obtained private and VA outpatient treatment records, afforded the Veteran VA examinations, and assisted the Veteran in obtaining evidence. Based on the foregoing, all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file, and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Law and Regulations The Veteran maintains that he is entitled to a disability rating greater than 10 percent for his service-connected chronic right knee osteoarthritis prior to December 1, 2008, and in excess of 20 percent since December 1, 2008. In that regard, disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Moreover, while the Board must consider the veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including sections 4.2, the regulations do not give past medical reports precedence over current findings. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Furthermore, when an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. Where, as in this case, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Historically, the Veteran's service-connected right knee disability has been rated under different diagnostic codes. In a December 2005 rating decision, the RO granted service connection and assigned a noncompensable evaluation for chronic knee condition, right, with osteoarthritis, under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003-5257. In a July 2006 rating decision, the RO increased the rating to 10 percent, and cited DC 5003- 5260. The Veteran filed a claim for increased rating in November 2007 and in the February 2008 rating action on appeal, the RO denied the claim, citing DC 5003-5260. In June 2010, to RO increased the rating to 20 percent, under DC 5260-5003, effective December 1, 2008. 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. See 38 C.F.R. § 4.27. As to the codes assigned by the RO, DC "5003-5257" may be read to indicate that degenerative arthritis is the service-connected disorder, and it is rated as if the residual condition is recurrent subluxation or instability of the knee under Diagnostic Code 5257. DC "5003-5260" may be read to indicate that the Veteran's right knee disability is rated as if the residual condition is limitation of flexion. Diagnostic Code 5003 provides that degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003. 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 rating applies for X-ray evidence of involvement of two or more minor joint groups. A 20 percent rating applies for X-ray evidence of involvement of two or more minor joint groups, with occasionally incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. Normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 govern the limitation of motion of the knee. DC 5260 concerns limitation of leg flexion. A noncompensable rating is warranted where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. A 30 percent rating applies where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5261 pertains to limitation of leg extension. A noncompensable rating is warranted where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. A 50 percent evaluation is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Under Diagnostic Code 5257, a 10 percent rating is assigned for slight impairment due to recurrent subluxation or lateral instability of the knee. A 20 percent rating requires moderate impairment due to recurrent subluxation or lateral instability. A 30 percent rating requires severe impairment due to recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Where a claimant has both limitation of flexion and limitation of extension of the same leg, separate ratings under diagnostic codes 5260 and 5261 are warranted to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9- 04 (September 17, 2004). In addition, separate ratings may be assigned for knee disability under Diagnostic Codes 5257 and 5003 where there is x-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. 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 for "equitable and just decisions." 38 C.F.R. § 4.6. Discussion The Veteran's right knee disability is currently evaluated as 10 percent disabling prior to December 1, 2008, and in excess of 20 percent since December 1, 2008. The Veteran underwent a VA examination in January 2008 at which time he reported that he is self-employed as a plumber. He denied the use of assistive devices. He denied experiencing any functional limitations when standing or walking due to his right knee disability. On examination, there was very mild medial/lateral instability. There was no crepitation, mass behind the knee, grinding, or clicks or snaps. Range of motion testing demonstrated flexion to 140 degrees and extension to 0 degrees. X-rays demonstrated mild arthritic changes. There was no evidence of an acute fracture or dislocation. Upon examination, the examiner diagnosed the Veteran with right knee osteoarthritis. A March 2008 VA outpatient treatment record demonstrates that the Veteran takes pain medication for his right knee. On examination, the Veteran's knee was tender; however, there was no effusion. In August 2008, the Veteran's spouse submitted a letter on the Veteran's behalf indicating that she has noticed that the Veteran's range of motion has diminished in the past two years, as he experiences diminished mobility and pain. She reported that the Veteran's pain keeps him awake at night and she has heard him crying due to the pain. She further reported that he limps when he walks, has difficulty climbing the stairs, and trouble getting out of bed. Private treatment records from Dr. J.A. dated in April 2005 to May 2005 demonstrate the Veteran sought treatment for knee pain. A December 2008 private treatment record shows the Veteran sought treatment for knee pain. The Veteran reported that he experiences popping, locking, and catching. He also complained of swelling and giving way. He further reported that his symptoms are worse with weather, sitting for long periods of time, standing for long periods of time, and driving. He currently takes pain medication for his condition; however, it does not provide him any relief. On examination, the Veteran's range of motion revealed flexion to 100 degrees and extension to 0 degrees. He had good quadriceps strength; there was no effusion. There was pain on compression of both the medial and lateral compartment and tenderness over the medial and lateral compartment. There was patella compression pain. Anterior draw test and Lachman's testing were negative. Sensation was intact to light touch throughout. X-rays did not reveal fractures or bony abnormalities. There was significant joint narrowing consistent with arthritis. The physician diagnosed moderate degenerative joint disease of the right knee. At a July 2009 VA examination, the Veteran reported that he experiences increased pain in his right knee, decreased mobility, and difficulty staying asleep at night due to the pain. He reported experiencing instability, his knee giving way, stiffness, weakness, incoordination, swelling, tenderness, redness and warmth. He is currently taking pain medication for his condition. He further reported experiencing weekly flare- ups, which last for hours and are alleviated by icing the knee and pain medication. The Veteran is currently a full-time plumber and has been for several years. He lost four weeks of time from work due to pain in his joints during the past 12-month period. The impact of the Veteran's disabilities on his occupational activities include decreased mobility, problems lifting and carrying, weakness or fatigue, decreased strength, and lower extremity pain, leading to increased absenteeism and the assignment of different duties at work. The effects of the Veteran's disability on his activities of daily living include a severe effect on chores, exercise, recreation, traveling, feeding, bathing, dressing, toileting, and driving; his disability prevents him from shopping and engaging in sports; and there is a moderate effect on his grooming. On examination, there was no crepitation, clicks or snaps, grinding, or instability. There were no patellar or meniscus abnormalities. There were no abnormalities of the tendons or bursae. Range of motion revealed flexion to 100 degrees and extension to 0 degrees and evidence of pain with active motion. There was objective evidence of pain following repetitive motion and the Veteran's flexion was from 0 to 95 degrees. There was no evidence of ankylosis. X-rays demonstrated that there was no acute fracture or dislocation in the right knee and joint spaces appeared maintained. Upon examination and review of the Veteran's claims file, the examiner diagnosed the Veteran with degenerative joint disease of the right knee. Prior to December 1, 2008 The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). As detailed above, the RO has historically evaluated the Veteran's service-connected right knee disability under different hyphenated diagnostic codes as if the residual was either instability or limitation of motion. However, instability and limitation of motion (either flexion or extension) are separate diagnoses for which separate diagnostic codes are available and for which separate ratings may be assigned. Based on a review of the evidence, the Board concludes that the Veteran's right knee disability is characterized by arthritis, limitation of flexion, pain on motion, and slight instability and his condition is more appropriately evaluated by assigning separate ratings under DC 5260 for limitation of flexion and 5257 for instability. As noted, arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. In this regard, as the January 2008 VA examination reveals normal range of motion; specifically, 0 degrees extension to 140 degrees flexion. The December 2008 private treatment record reveals 0 degrees extension to 100 degrees flexion. As there is no evidence of limitation of extension of his right knee, the Veteran does not warrant a separate compensable rating for his right knee under 5261. While the Veteran has exhibited limitation of flexion of his right knee, it has been at worse, to 100 degrees (with consideration of pain). Absent evidence of limitation of flexion to 30 degrees, the Veteran does not warrant the next higher 20 percent disability evaluation under DC 5260. As the evidence does not demonstrate additional limitation of motion due to pain, the range of motion does not more nearly approximate or equate to flexion limited to 60 degrees or extension limited to 5 degrees, the criteria for a separate noncompensable rating under DC's 5260 and 5261, considering 38 C.F.R. § 4.40, 4.45, and 4.59. As such, the Veteran does not warrant a disability rating in excess of 10 percent under DC's 5260 or 5261. DC 5256 is not applicable, as the Veteran does not, nor has he ever demonstrated ankylosis of his right knee. Likewise, DC 5258 is not for application in the present case. While the Board notes that during the December 2008 private examination the Veteran reported experiencing locking episodes, there was no noted objective evidence of locking on examination. The evidence of record does not demonstrate impairment of the Veteran's tibia and fibula, thus DC 5262 is not for application in this case. Similarly, as the evidence fails to show genu recurvatum, DC 5263 is inapplicable. As such, the Veteran is not entitled to a disability evaluation in excess of 10 percent under DC 5256, 5258, 5262, or 5263. However, the Board does find that a separate 10 percent disability rating based on instability under DC 5257 is warranted, as there is objective evidence instability. Specifically, during the January 2008 VA examination, the objective evidence demonstrates that the Veteran has very mild medial/lateral instability. The evidence, however, does not demonstrate that the Veteran warrants the next higher 20 percent disability evaluation for the period prior to December 1, 2008, as he does not exhibit moderate instability. Therefore, the Board finds that the a separate 10 percent disability rating, but no more, for instability under DC 5257 is warranted. VAOPGCPREC 23-97 (1997). Since December 1, 2008 Effective December 1, 2008, the RO assigned a single 20 percent evaluation under DC 5260-5003, for limitation of flexion, but noted a December 1, 2008, private treatment record that included a finding of "giving way." The Veteran's right knee disability is characterized by limitation of flexion and instability and is more appropriately evaluated by assigning separate 10 percent evaluations under DC 5257 and 5260. Pernorio, 2 Vet. App. at 625. Upon review of the evidence of record, the Board finds that ratings in excess of 10 percent for the instability and 10 percent for limitation of flexion are not warranted. The July 2009 VA examination shows flexion to 95 degrees following repetitive motion and extension to 0 degrees; thus, increased rating are not warranted under DC 5260 or 5261 for limitation of motion. Even considering the DeLuca, the Veteran did not demonstrate flexion or extension warranting an increased rating for the period under consideration. 38 C.F.R. § 4.71a, DC's 5260 and 5261. Further, as there is no evidence of moderate instability, an increased rating is not warranted under DC 5257. None of the other potentially applicable Diagnostic Codes are appropriate in this case with regard to the rating periods being considered. There is no evidence of ankylosis, impairment of the tibia and fibula, genu recurvatum (hyperextended knee), dislocation or removal of semilunar cartilage. As the preponderance of the evidence is against the claim for an increased rating for either instability or limitation of flexion since December 1, 2008, the benefit of the doubt rule does not apply, and the claim for increased rating must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 50. Extraschedular Considerations During the July 2009 VA examination, the Veteran indicated that the pain in his joints has caused him to miss four weeks of work during the past 12-month period. Further, during the examination, the effects of the Veteran's disability on his activities of daily living were noted to be severe on chores, exercise, recreation, traveling, feeding, bathing, dressing, toileting, and driving; his disability prevents him from shopping and engaging in sports; and there is a moderate effect on his grooming. As such, the Board must adjudicate the issue of whether referral for an extraschedular rating is warranted. See Barringer v. Peake, 22 Vet. App. 242 (2008). Here, the record does not establish that the rating criteria are inadequate for rating the Veteran's service-connected right knee condition. The discussion above reflects that the Veteran's knee disability is primarily manifested by pain, instability and limitation of motion. Many of the applicable diagnostic codes used to rate the Veteran's disability provide for ratings based on limitation of motion. See Diagnostic Codes 5260, 5261. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Prior to December 1, 2008, entitlement to a separate 10 percent rating for instability of the right knee is granted, subject to the laws and regulations governing the payment of monetary benefits. Prior to December 1, 2008, entitlement to a disability rating in excess of 10 percent for arthritis of the service-connected right knee is denied. Since December 1, 2008, entitlement to a disability rating in excess of 10 percent for limitation of flexion of the service- connected right knee is denied. Since December 1, 2008, entitlement to a disability rating in excess of 10 percent for instability of the service-connected right knee is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs