Citation Nr: 1303102 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 11-12 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for tooth discoloration. 2. Entitlement to an initial disability evaluation in excess of 10 percent for an anxiety disorder. 3. Entitlement to an initial compensable disability evaluation for degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from July 1986 to January 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, denying the claim of entitlement to service connection for tooth discoloration, and granting service connection for an anxiety disorder and a left knee disability and assigning disability evaluations of 10 percent and 0 percent, respectively. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the Board's Central Office in Washington, DC in March 2012. A written transcript of this hearing has been prepared and incorporated into the evidence of record. The issue of entitlement to service connection for breast augmentation was raised by the record, but it has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for discoloration of the teeth and entitlement to an initial disability evaluation in excess of 10 percent for an anxiety disorder 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. FINDING OF FACT The Veteran's left knee disability is manifested by degenerative changes and pain; it is not manifested by instability, limitation of motion, impairment of the meniscus, impairment of the tibia and fibula or genu recurvatum. CONCLUSION OF LAW The criteria for establishing entitlement to an initial disability evaluation of 10 percent for a left knee disability have been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5003, 5014, 5260, 5261, 5257 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide 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). The Veteran's claim arises from her disagreement with the initial evaluation following the grant of service connection. 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), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for these claims. As to VA's duty to assist, VA has associated with the claims folder the Veteran's service treatment records and her statements and testimony. Also, in February 2010, she was afforded a VA examination of the left knee. While the Veteran has not been afforded an examination since this time, remand for a new examination is not necessary. Reexaminations are required if the evidence indicates there has been a material change in a disability or that the current rating is incorrect. 38 C.F.R. § 3.327 (2012). The Veteran testified in March 2012 that she did not have instability of the left knee and she did not describe limitation of motion or additional symptomatology that would indicate an overall worsening in this disability. Therefore, the Board finds that no additional assistance is required to fulfill VA's duty to assist. 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). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the 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 will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2011). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2012). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where 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, in Fenderson v. West, the Court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. 12 Vet. App. 119, 126 (1999). The record reflects that the Veteran was granted service connection for degenerative joint disease of the left knee in an August 2010 rating decision. A noncompensable (0 percent) disability evaluation was assigned under Diagnostic Code 5010-5260, effective as of February 1, 2010. In September 2010, VA received a timely notice of disagreement from the Veteran. The noncompensable disability evaluation was continued in an April 2011 statement of the case. The Veteran appealed the assigned rating to the Board in May 2011. The Veteran was afforded a VA examination of the left knee in February 2010. The Veteran reported left knee pain since 2003 following a fall. A magnetic resonance image (MRI) revealed chondromalacia and degenerative joint disease. The Veteran reported that she still suffered from intermittent left knee pain that was aggravated by running, weight bearing, and prolonged sitting or standing. The Veteran also reported stiffness, weakness and swelling, but denied giving way, instability, episodes of dislocation or subluxation or flare-ups of joint disease. Examination revealed flexion to 145 degrees and extension to 0 degrees with no objective evidence of pain following repetitive motion. There were also no additional limitations after three repetitions of motion. X-rays were taken and interpreted to reveal no bony or soft tissue abnormality. Nonetheless, the diagnosis of left knee degenerative joint disease was continued and it was noted that this resulted in moderate to severe effects on the Veteran's ability to perform chores, shop or exercise. The above evidence demonstrates that the Veteran is entitled to a disability evaluation of 10 percent for her left knee disability. She is currently rated under Diagnostic Code 5010. Diagnostic Code 5010 instructs the rater to rate the Veteran under Diagnostic Code 5003 as degenerative arthritis. 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 Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 and 5261. In the present case, X-rays taken in February 2010 were deemed to be normal. However, the Veteran's service treatment records reflect that she was diagnosed with degenerative changes of the anterior left patella by MRI in April 2007. The February 2010 VA examiner also continued the diagnosis of degenerative joint disease. Therefore, when resolving all doubt in favor of the Veteran, the Board finds that there is radiological evidence of degeneration of the left knee of record. In addition, the Veteran has reported continued pain in the left knee. Therefore, at a minimum, a 10 percent disability evaluation is warranted for arthritis. However, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to a disability evaluation in excess of 10 percent for her left knee disability at any time during the pendency of this claim. Her February 2010 VA examination report reflects flexion to 145 degrees and extension to 0 degrees. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a higher disability evaluation of 20 percent is warranted when there is evidence of limitation of flexion of the leg to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. The record does not reflect that the Veteran suffers from limitation of flexion of the left knee. A higher disability evaluation of 20 percent is also warranted for limitation of extension of the leg to 15 degrees. See id at Diagnostic Code 5261. However, there is no evidence of limited extension of the left knee either. As such, a higher disability evaluation based on limitation of motion of the left knee is not warranted. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion. 38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion. 38 C.F.R. § 4.40 (2012). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45 (2012). According to the February 2010 VA examination report, while the Veteran did report pain, this was not evident upon range of motion testing. Also, there was no additional limitation of motion upon repetition and the Veteran denied a history of flare-ups. Finally, during her March 2012 hearing, the Veteran indicated that despite having constant pain, she maintained her range of motion because she had been physically active her whole life. Also, while she reported weakness during her February 2010 examination, she suggested in March 2012 that she was still able to go up and down stairs and walk and stand for long periods of time in spite of the reported pain and weakness. The record contains no further evidence to demonstrate that the Veteran suffers additional functional loss above and beyond that contemplated by a 10 percent disability evaluation for her left knee degenerative joint disease due to pain, weakness or other factors. A higher disability evaluation based on the DeLuca criteria, therefore, is not warranted. The Board has also considered whether a separate disability evaluation may be warranted under any other applicable diagnostic code. During her March 2012 hearing, the Veteran consistently denied instability of the left knee. She also did not mention a problem with limitation of motion. The knee was also found to be stable upon examination in February 2010. As such, a separate disability evaluation for recurrent subluxation or lateral instability of the left knee is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5256. Likewise, no other diagnostic code applicable to the knee would allow for a higher disability evaluation, as there is no evidence of ankylosis, dislocated or removed cartilage, impairment of the tibia and fibula or genu recurvatum. See id at Diagnostic Codes 5256, 5258-59, 5262-63. The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's symptoms associated with her service-connected left knee disability include pain and subjective sensations of weakness. However, such impairment is contemplated by the rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5003. These codes allow for a higher disability evaluation upon a showing of worsening symptomatology. Therefore, the rating criteria reasonably describe the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether a remand for consideration of total disability benefits based on individual unemployability (TDIU) is warranted. The Court has held that TDIU is an element of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran has been able to maintain full-time employment throughout the pendency of her claim. Since the evidence establishes that the Veteran is not unemployable as a result of her service-connected left knee disability, further consideration of this matter is not warranted. Resolving all reasonable doubt in favor of the Veteran, the Board finds that an initial disability evaluation of 10 percent is warranted for a left knee disability. See 38 U.S.C. § 5107(b). However, the preponderance of the evidence of record is against a finding of a disability evaluation in excess of 10 percent at any time during the pendency of this claim, and as such, the provisions regarding reasonable doubt are not applicable to this aspect of the claim. ORDER An initial disability evaluation of 10 percent for degenerative joint disease of the left knee is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND Discoloration of the Teeth The Veteran contends that she is entitled to service connection for discoloration of the teeth. Specifically, she has argued that her teeth became discolored as a result of medications she was prescribed while on active duty. Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has testified that she was told during service that the discoloration of her teeth arose as a result of an allergic reaction to medications she took during military service - specifically, Minocycline. This assertion is supported by the evidence of record. According to a November 2009 in-service treatment note, the Veteran suffered from a discoloration of the teeth that was grayish in color as a result of Minocycline. However, while there is evidence of in-service discoloration, it is unclear whether discoloration of the teeth is associated with any actual underlying disability. The Veteran testified in March 2012 that she experienced sensitivity of the teeth. However, the cause of this sensitivity is not known. The Veteran admitted that she avoided going to the dentist because she feared pain. As such, the record contains no medical evidence demonstrating whether this condition still exists (was it a chronic condition or did it resolve upon treatment) or what degree of discoloration is related to the in-service use of Minocycline. While the Veteran has submitted a color photograph of her teeth, the Board is unable to ascertain upon review of this image whether it reveals discoloration, an underlying disability or any other symptomatology. The Board is prohibited from rendering its own opinion on a medical question. Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, a VA dental examination is necessary. Increased Evaluation for an Anxiety Disorder Finally, the Veteran contends that she is entitled to a disability evaluation in excess of 10 percent for her service-connected anxiety disorder. Regrettably, additional evidentiary development is required on this issue before appellate review may proceed as well. During her March 2012 hearing, the Veteran testified that she was having more difficulty with her job due to her anxiety disability. She reported that she was now becoming frustrated and irritable with people and that this resulted in conflict with her co-workers. The Veteran estimated that because of her anxiety, she took approximately 2 days off per month to deal with her stress. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). It has been more than 2 years since the Veteran's last examination and she has now described worsening symptomatology that was not noted at the time of her last examination of February 2010. At this time, it was noted that the Veteran functioned very well at work and that she appropriately interacted with others. The Veteran's testimony of March 2012 calls into question the accuracy of this finding at this time. Finally, the Veteran indicated that might begin seeking psychiatric treatment on a private basis. She should be contacted and asked to identify any private treatment she has received for her anxiety disorder. If any treatment is identified, she should be asked to provide all appropriate authorization and records from this provider should be obtained and incorporated into the claims file. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be contacted and asked to identify any medical treatment she has received for her claimed disabilities outside of VA. If any such treatment exists, she should provide VA with authorization and consent to obtain these records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should be scheduled for a VA dental examination regarding her claimed discoloration of the teeth. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with the examination. The examination report should reflect review of these items. Upon examination, the examiner must address the following: (a) Indicate whether the Veteran continues to suffer from discoloration of the teeth related to her in-service use of Minocycline, or, whether the discoloration related to the use of Minocycline resolved over time. (b) If there is still evidence of discoloration related to the use of Minocycline, the examiner should describe in detail the degree of discoloration associated with the use of Minocycline. (c) The examiner should also determine whether the Veteran's discoloration of the teeth is associated with any other disability of the teeth, mouth or jaw. If so, the examiner should describe in detail the nature and symptomatology of any underlying disability. (d) Does the Veteran suffer from any other chronic disability or associated symptomatology stemming from her in-service use of Minocycline? The Veteran's lay reports of symptomatology must be discussed and considered and a complete rationale must be provided for all opinions offered. (e) Finally, the examiner should describe the degree of disability associated with the Veteran's discoloration of the teeth. Specifically, the examiner should discuss whether this condition results in occupational impairment or impairs the Veteran's activities of daily living. Any degree of disfigurement should also be described in detail. 3. The Veteran should also be scheduled for a VA examination before an appropriate physician to determine the current level of severity of her service-connected anxiety disorder. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with the examination. The examination report should reflect review of these items. All indicated tests and studies should be performed, and the examiner is asked to describe in detail all symptomatology associated with the Veteran's service-connected anxiety. The Veteran's lay statements regarding the severity of her symptomatology should also be considered and discussed. The examiner is asked to describe in detail the degree of occupational and social impairment stemming from her service-connected anxiety disorder, to include her reports of conflicts with her co-workers. A complete rationale must be provided for all opinions offered. 4. The AMC should then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case (SSOC), containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. 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. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs