Citation Nr: 1206044 Decision Date: 02/17/12 Archive Date: 02/23/12 DOCKET NO. 08-02 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for Addison's disease. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety. 3. Entitlement to an initial disability rating in excess of 10 percent for gastroesophageal reflux disease with history of hiatal hernia (GERD). 4. Entitlement to an initial compensable disability rating for patellofemoral syndrome, right knee. 5. Entitlement to an initial compensable disability rating for patellofemoral syndrome, left knee. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The Veteran had active service from September 1988 to December 1999 and from March 2000 to March 2002 with additional time served in the Navy Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions from the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). Specifically concerning the claim for service connection for an acquired psychiatric disorder, the Board notes that in a March 2009 decision, the RO denied service connection for depression with complaints of anxiety, insomnia, and nightmares. In November 2009, the Veteran filed a Notice of Disagreement with the March 2009 decision. In May 2011, the RO issued a Statement of the Case with respect to this issue. Although the Veteran did not specifically file a VA form 9 concerning this issue, during her October 2011 hearing before the undersigned Veterans Law Judge, the Veteran expressed her desire to continue her appeal of the denial of this issue, and testimony was given. Recognizing that the Veteran has pursued her appeal pro se, the Board has liberally construed her pleadings and has accepted jurisdiction of this issue. See 38 C.F.R. § 20.202 (2011). Concerning the issues of entitlement to higher ratings for the bilateral knee disorders and GERD, and service connection for Addison's disease, since the issuance of the last Supplemental Statement of the Case in May 2009, additional VA outpatient records have been added to the claims file without a waiver of initial RO consideration. As the issues of entitlement to a higher rating for GERD and service connection for Addison's disease are being remanded to the RO for other reasons, the RO will have the opportunity to review these records in the first instance. As these records pertain primarily to current treatment for GERD and Addison's disease and treatment for disorders not on appeal, no useful purpose would be served in remanding the other claims on appeal for yet more development. Such a remand of the other issues would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The issue of entitlement to service connection for pes planus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for Addison's disease and an acquired psychiatric disorder, and entitlement to an initial disability rating in excess of 10 percent for GERD, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's right knee exhibits flexion to 135 degrees, full extension, no instability, and pain. 2. The Veteran's left knee exhibits flexion to 135 degrees, full extension, no instability, and pain. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 10 percent, but no higher, for a right knee disability have met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5019 (2011). 2. The criteria for a disability rating of 10 percent, but no higher, for a left knee disability have met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5019 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Concerning the Veteran's claim for higher disability ratings, the Veteran's claims are deemed to have arisen from an appeal of the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file. VA Medical Center records have been obtained. VA examinations have been performed. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. In sum, the Board is satisfied that any procedural defects in the RO's development and consideration of the claim were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Law and Regulations-Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that 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. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has 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). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. The Veteran's bilateral knee disabilities have been evaluated under Diagnostic Code 5019, for bursitis. 38 C.F.R. § 4.71a. Diagnostic Code 5019 specifies that the disability will be rated on limitation of affected parts, which in turn is rated under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for extension of the leg. Under DC 5260, a noncompensable rating is assigned when flexion is limited to 60 degrees. A rating of 10 percent requires limitation of flexion to 45 degrees. A rating of 20 percent requires limitation of flexion to 30 degrees, and a rating of 30 percent requires limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2009); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Analysis In a VA treatment record from June 2006, the Veteran reported that her left knee popped and cracked. She related that her knee pain increased with walking up or down hills or stairs. On VA examination in March 2007, the Veteran complained of bilateral knee pain that increased when she ascended and descended stairs. She reported increased swelling after standing. She stated that she would ice and elevate her knees at the end of the day, and she would take Ibuprofen. She experienced flare-ups upon increased activity, but the flare-ups would not cause her to miss work. The examiner noted that the Veteran used no assistive devices. The report reflects that the Veteran did not have any episodes of dislocation or subluxation. No inflammatory arthritis was noted. The examiner opined that the disorder did not affect the Veteran's usual occupation or affect her activities of daily living. The examiner found no effusion or crepitation; he specified that the knees appeared normal. Flexion of the knees was to 140 degrees bilaterally. Extension of the knees was to 0 degrees bilaterally. The examiner indicated that there was no objective evidence of pain on motion, and both knees were stable. Repetitive movement did not alter the range of motion. No ankylosis was noted. The diagnosis given was bilateral patellofemoral syndrome. On her VA form 9 submitted in January 2008, the Veteran reported that she had considerable pain in her knees upon ascending or descending stairs, stepping off of curves, or standing for lengthy periods of time. On VA examination in May 2009, the Veteran complained of constant, achy, moderate pain. She reported that walking down stairs caused severe pain. She stated that both of her knees would give way at times. No deformity, instability, stiffness, dislocation, subluxation, or effusion was reported. The Veteran stated that her knees were weak and would pop. It was noted that the Veteran's knees hurt when she was putting stock on shelves at work, but she was still able to perform her duties. The examiner found no evidence of deformity or tenderness, clicks or snaps, grinding, instability, or other abnormality of either knee. Bilateral crepitation was observed. Flexion was to 135 degrees bilaterally. Extension was to 0 degrees bilaterally. There was no objective evidence of pain following repetitive motion. No ankylosis was found. The examiner said that X-rays of the knees were negative. The diagnosis given was patellofemoral syndrome of the bilateral knees. During the Veteran's October 2011 Board hearing, she testified that she experienced pain and swelling of her knees on a daily basis. She experienced cracking and popping sounds in her knees. She said that she took over-the-counter medication to relieve her pain. She mentioned that at work, she had to arrange her chair so that she was not putting any weight on her knees. She felt that her knees would give way. The Board observes that during the time period relevant to this appeal, the evidence reflects that flexion of each knee was limited, at worst, to 135 degrees. The aforementioned flexion measurements are consistent with no more than a 0 percent (noncompensable) rating under DC 5260. The Board points out that during the time period relevant to this appeal, there has been no evidence of limitation of extension of the either knee. Hence, the extension measurements are also consistent with no more than a 0 percent (noncompensable) rating under DC 5261. However, the Veteran has repeatedly reported that she experiences constant pain in both knees. In particular, as indicated by the Veteran's October 2011 hearing testimony, she has had increased pain. The Board observes that, given the Veteran's painful-albeit, noncompensable-bilateral knee motion, and other symptoms, an increased initial disability of 10 percent for each knee appears to be consistent with DeLuca, 38 C.F.R. § 4.40, 4.45, and 4.59 (recognizing the intention of the rating schedule to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). However, the medical evidence reflects that no higher rating is assignable, even when functional loss due to pain, weakness and other factors is considered. In this case, given the Veteran's complaints of instability, the Board has alternatively considered whether a higher rating is assignable on the basis of recurrent subluxation or lateral instability. Under DC 5257 other impairment of the knee, such as recurrent subluxation or lateral instability 10, 20, and 30 percent ratings, are assignable for slight, moderate, and severe impairment, respectively. 38 C.F.R. § 4.71a. However, based on the objective findings, the Board concludes that there is no basis for assignment of a separate rating for either knee under DC 5257. Despite the Veteran's complaints of instability, there has been no objective evidence of laxity or recurrent subluxation in either knee. In this regard, instability was not found on objective examination in either the March 2007 or May 2009 VA examination. While the Veteran has testified that her knees would occasionally give way, her statements are not supported by the objective medical evidence. The Board finds that the VA examination reports outweigh the Veteran's contentions as the VA examination reports were created by objective medical personnel impartially reporting the results of a medical examination. Concerning the Veteran's statements, the Board recognizes that that personal interest may affect the credibility of the evidence. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board finds that there is no basis for a separate rating for instability as the VA examination reports outweigh the Veteran's contentions. The Board has also considered whether there is any basis for assignment of a higher rating for either knee under any other potentially applicable diagnostic code. However, in the absence of any ankylosis, dislocated or removed cartilage, or other deformity, evaluation of the knees under any other diagnostic code for evaluating pertaining to musculoskeletal disability of the lower extremities-DC 5256, 5258, 5259, 5262, or 5263-is not appropriate. See 38 C.F.R. 4.71a. Moreover, the disabilities are not shown to involve any other factor(s) that would warrant evaluation of the disability under any other provision(s) of the rating schedule. Finally, consideration has also been given regarding whether the schedular standards are inadequate for rating purposes, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2010); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the service- connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. The diagnostic criteria adequately describe the severity and symptomatology of the service-connected disabilities. Additionally, while the Veteran has had to make adjustments at her work to compensate for her disabilities, she has not had to miss any time from work due to her knee disabilities. The Board notes that she has not been hospitalized for this disability during the pendency of this appeal. As such, referral for extraschedular consideration is not in order here. ORDER An initial disability rating of 10 percent, but no higher, for patellofemoral syndrome, right knee, is granted, subject to the law and regulations governing the payment of VA compensation benefits. An initial disability rating of 10 percent, but no higher, for patellofemoral syndrome, left knee, is granted, subject to the law and regulations governing the payment of VA compensation benefits. REMAND Concerning the claim for service connection for Addison's disease (or adrenal insufficiency), the record shows that the first diagnosis of possible Addison's disease was given by a private examiner in July 2003, while the Veteran was serving in the Reserves. In March 2004, a service examiner opined that the Veteran had a confirmed diagnosis of Addison's disease that could have developed prior to 2003. The Veteran was medically separated from the Reserves due to Addison's disease. In her VA form 9 submitted in January 2008 and in an additional statement submitted in October 2009, the Veteran reported her own research concerning Addison's disease. She related that she discovered that Addison 's disease can occur through drug induction. She indicated that a cream she was prescribed while she was on active duty, triamcinolone acetonide cream, caused adrenal gland suppression. Later, during her October 2011 Board hearing, the Veteran testified that her research showed that Addison 's disease is acquired in one of three ways. She said that a person is either born with in, acquires it through tuberculosis, or a medication causes it. She related that to the best of her knowledge, she was not born with Addison's disease, and she had never tested positive for tuberculosis. She indicated that while she was on active duty she was prescribed a steroidal cream for a three-year period, and after she discontinued use of the cream, she experienced extreme fatigue. The Veteran's active duty and reserve treatment records show that in March and June 2001, she was prescribed topical steroids. Additionally, her active duty treatment records document repeated treatment for dizziness and dyspepsia (see service treatment records from April and May 1993, for example) and dehydration (see service treatment records from January 1994, for example). These records give rise to the possibility of either a direct incurrence of Addison's disease while the Veteran was on active duty or of a secondary causation of Addison's disease due to steroids prescribed to the Veteran while she was on active duty. Thus, the Veteran should be afforded a VA examination to determine the etiology of her Addison's disease. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Concerning the claim for service connection for a psychiatric disorder, the Veteran was afforded a VA psychiatric compensation and pension examination in February 2009. Based on his review of the claims file and his examination of the Veteran, the examiner opined that the Veteran had a diagnosis of depressive disorder that was closely or directly related to her Addison's disease. As the claim for service connection for Addison's disease is being remanded to afford the Veteran a VA examination, the claim for service connection for a psychiatric disorder must also be remanded, as the two claims are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Concerning the claim for an initial disability rating in excess of 10 percent for GERD with a history of hiatal hernia, additional pertinent treatment records have been added to the claims file after the last Supplemental Statement of the Case was issued in May 2009. As the Veteran has not waived regional office consideration of these pertinent records, remand is required to afford the Veteran proper due process. The Board notes that within these additional treatment records, a VA treatment record from June 2010 reflects that the Veteran had intermittent diarrhea and had lost 23 pounds in five months. The note specifies that the weight loss was not intentional. As such, it appears that the symptoms due to the Veteran's GERD have increased in severity since her prior VA examination for rating purposes in March 2007, and thus, she should be afforded another VA examination. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination). Accordingly, the case is REMANDED for the following action: 1. The RO should send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The RO should specifically request that the Veteran submit any copies of her service treatment records that she may have in his possession. 2. If the Veteran responds, the RO should assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. The Veteran should be afforded a VA examination by an endocrine system specialist to determine the etiology of the Veteran's Addison's disease. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. After review of the record and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that Addison's disease was incurred in or aggravated by active service, to include as secondary to prescription steroid cream. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. The Veteran should be scheduled for an appropriate VA examination for the purpose of evaluating the severity of the Veteran's service-connected GERD with history hiatal hernia. All indicated tests and studies are to be performed. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the examiner's report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. The examiner is specifically requested to address whether the Veteran's GERD results in symptoms of pain, vomiting, material weight loss, hematemesis, melena, dysphasia, pyrosis, and/or substernal arm or shoulder pain. 5. Following completion of all indicated development, the RO should readjudicate the issues on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran should be furnished a Supplemental Statement of the Case and afforded the requisite opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs