Citation Nr: 0807704 Decision Date: 03/06/08 Archive Date: 03/17/08 DOCKET NO. 06-04 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to a higher (compensable) initial disability rating for service-connected patellofemoral syndrome of the right knee. ATTORNEY FOR THE BOARD D. Raffaelli, Associate Counsel INTRODUCTION The veteran served on active duty from November 2000 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision, dated May 2005, by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, which granted service connection for right knee patellofemoral syndrome and assigned an initial noncompensable (0 percent) disability rating from December 1, 2004. In July 2005, the veteran's notice of disagreement with the initial rating percentage was received. FINDINGS OF FACT 1. The veteran's service-connected patellofemoral syndrome of the right knee has for the entire period of initial rating claim manifested subjective complaints of pain and objective findings of full range of motion. 2. The veteran's service-connected patellofemoral syndrome of the right knee has not manifested recurrent subluxation or lateral instability; and arthritis of the right knee has not been clinically established by x-ray evidence. CONCLUSION OF LAW For the entire initial rating appeal period, the criteria for a higher (compensable) disability rating for service- connected patellofemoral syndrome of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.71, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5024, 5256, 5257, 5258, 5260, 5261 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initial Rating for Right Knee Patellofemoral Syndrome Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. In evaluating musculoskeletal disabilities, the Board must assess functional impairment and determine the extent to which a service connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. These regulations, and the prohibition against pyramiding in 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995). Ratings based on limitation of motion do not subsume the various rating factors in 38 C.F.R. §§ 4.40 and 4.45, which include pain, more motion than normal, less motion than normal, incoordination, weakness, and fatigability. In other words, when rated for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. A finding of functional loss due to pain must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." 38 C.F.R. § 4.40. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Id. The Board has considered the entire period of initial rating claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The veteran asserts that her service-connected patellofemoral syndrome of the right knee warrants more than the current noncompensable (0 percent) initial disability rating assigned. Specifically, she complains of swelling, redness, tightness, and pain, and reports that she wears a brace while running. In April 2005, the veteran underwent a VA examination where she complained of pain. There was no evidence of effusion, warmth, erythema, or instability. Lachman's and McMurray's tests were negative. Active range of motion was zero to 150 degrees, and passive range of motion was zero to 155 degrees. After three repetitions, range of motion was noted as zero to 140 degrees, losing 10 degrees of motion which was attributed to fatigability. She denied any significant pain, weakness, or incoordination on range of motion testing. X-rays were normal. The reviewing physician diagnosed the veteran with right knee patellofemoral syndrome. The veteran's service-connected patellofemoral syndrome of the right knee was initially rated as noncompensable (0 percent) under DC 5024, which provides that the affected part will be rated under limitation of motion as for degenerative arthritis. 38 C.F.R. § 4.71a, DC 5024. Under DC 5003, the Schedule directs that degenerative arthritis that has been established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved. It further states that when the limitation of motion is noncompensable under the code, a rating of 10 percent is for application for each such major joint affected by limitation of motion. 38 C.F.R. § 4.71a, DC 5003. In this veteran's case, there is no diagnosis of arthritis that has been established by x-ray findings; therefore, a disability rating for arthritis of the right knee is not warranted. X-rays of the right knee taken in conjunction with the April 2005 examination were normal. The standardized range of motion for the knee is flexion to 140 degrees and extension to zero degrees. 38 C.F.R. § 4.71, Plate II. A noncompensable (0 percent) rating is warranted under DC 5260 when flexion of the leg is limited to 60 degrees. A 10 percent rating is warranted when flexion is limited to 45 degrees, and a 20 percent rating is warranted when flexion is limited to 30 degrees. 38 C.F.R. § 4.71a, DC 5260. A noncompensable rating under DC 5261 is warranted when there is limitation of extension of the leg to 5 degrees. A 10 percent rating is warranted when extension is limited to 10 degrees, and a 20 percent rating is warranted when extension is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5261. The Board finds that a compensable rating is not in order for any period of the initial rating claim. The April 2005 examination showed that the veteran had full ranges of motion of the right knee. 38 C.F.R. § 4.71, Plate II. The provisions of 38 C.F.R. §§ 4.40 and 4.45 have been considered; however, there is no competent evidence to support a higher (compensable) initial rating in this case for any period of the claim. Additionally, there is no evidence of recurrent subluxation or lateral instability. Therefore, a higher initial rating or a separate rating under DC 5257 is not warranted. 38 C.F.R. § 4.71a. In addition, the Board has considered the veteran's statements regarding subjective complaints that including due to pain, swelling, redness, tightness, and that she wears a brace while running, but finds that the clinical findings, which directly address the criteria under which the service- connected right knee disability is evaluated, include specific measures on repeated clinical testing, and make specific clinical findings and observations regarding the reported symptoms, to be more probative than the veteran's subjective reports that are not mirrored by the clinical findings. In conclusion, the Board finds that the preponderance of the evidence does not support a compensable rating for the right knee disability. In reaching this conclusion, the benefit- of-the-doubt doctrine has been applied. See 38 U.S.C.A. § 5107(b). The Board has also considered whether staged ratings are appropriate, but finds no distinct time periods where the veteran's symptoms warrant a different rating. See Fenderson, 12 Vet. App. 119. Additionally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 is not warranted. Notice and Assistance Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the March 2005 notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the veteran was provided an adequate VA examination of the right knee in April 2005. Significantly, she has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Specifically, the veteran has not stated that she is currently receiving any treatment for her right knee patellofemoral syndrome. The Board finds that all necessary development has been accomplished, and therefore, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A higher (compensable) initial disability rating for service- connected patellofemoral syndrome of the right knee, for the entire period of claim, is denied. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs