Citation Nr: 1414369 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 10-05 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for left knee posttraumatic arthritis with patellofemoral syndrome from August 1, 2008 to April 1, 2012. 2. Entitlement to an increased rating for left knee posttraumatic arthritis with patellofemoral syndrome, evaluated as 20 percent disabling since April 2, 2012. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to June 1996. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a May 2008 rating decision of the VA Regional Office (RO) in Jackson, Mississippi that reduced the 50 percent rating for the service-connected left knee disorder from 50 to 10 percent, effective August 1, 2008. By rating action dated in July 2012, the 10 percent rating for left knee posttraumatic arthritis with patellofemoral syndrome was increased to 20 percent, effective from April 2, 2012. In February 2013, The Board denied a challenge to the propriety of the reduction from 50 to 10 percent for left knee posttraumatic arthritis with patellofemoral syndrome effective August 1, 2008. This matter is no longer for appellate consideration. The issues of entitlement to an evaluation in excess of 10 percent for left knee posttraumatic arthritis with patellofemoral syndrome between August 1, 2008 and April 1, 2012, and entitlement to a rating in excess of 20 percent for left knee disability since April 2, 2012, were remanded for further development. The issue of entitlement to an evaluation in excess of 20 percent for left knee posttraumatic arthritis with patellofemoral syndrome since April 2, 2012 is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Between August 1, 2008 and April 1, 2012, the Veteran's left knee posttraumatic arthritis with patellofemoral syndrome was manifested by no more than periarticular pathology, full extension, and flexion between 100-115 degrees. 2. The Veteran's left knee posttraumatic arthritis with patellofemoral syndrome was not manifested by ankylosis, malunion or non-union between August 1, 2008 and April 1, 2012. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for left knee posttraumatic arthritis with patellofemoral syndrome were not met from August 1, 2008 to April 1, 2012. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance. There is no issue as to providing the Veteran an appropriate application form or the completeness of the application. VA appropriately notified the Veteran of the information and evidence needed to substantiate and complete the claim. There is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. As such, the claim of entitlement to an evaluation in excess of 10 percent for left knee posttraumatic arthritis with patellofemoral syndrome from August 1, 2008 to April 1, 2012 is ready to be considered on the merits. Law and Regulations Historically, service connection was established for left knee patellofemoral syndrome by rating action dated in November 1996. The 10 percent disability evaluation was assigned effective August 1, 2008. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2013). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life and is based, as far as practicable, on average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, 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 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. The normal range of knee motion is from 0 to 140 degrees. See 38 C.F.R. § 4.71a, Plate II (2013). Limitation of motion of the knee is evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. When flexion of the knee is limited to 45 degrees, a 10 percent rating may be assigned. Flexion limited to 30 degrees warrants a 20 percent evaluation. A 30 percent rating may be assigned when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. When extension of the knee is limited to 10 degrees, a 10 percent evaluation may be assigned. When extension is limited to 15 degrees, a 20 percent evaluation may be assigned. When limited to 20 degrees, a 30 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling. Moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling. Severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a , Diagnostic Code 5257 (2013). When evaluating musculoskeletal disabilities, VA must 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. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet.App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet.App 7 (1996). With any form of arthritis, painful motion is an important factor of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59 (2013). Factual Background The Veteran underwent a VA examination in January 2008. He stated that since a previous evaluation, dull and aching left knee pain continued with an intensity of two on a 10 point scale (2/10). He reported flare-ups of pain three times a week on average and said that walking too long, standing, or climbing stairs provoked pain for which he had been prescribed Celebrex and Lortab. The appellant related that medication had been effective and controlled his pain. Associated symptoms were reported to include left knee stiffness, swelling, giving way and locking at times. He reported using a neoprene brace for support but did not utilize a cane or crutch. The appellant reported that he was functionally independent in all basic activities of daily living, but left knee pain interfered when he had to depress the clutch in his manual gear truck. The Veteran recalled that he had been incapacitated a few time in the past due to knee pain but that no physician had prescribed complete bed rest during the prior 12 months. On examination, the Veteran walked with a slight limp favoring the left leg. He was not able to squat due to right knee pain. Left knee patella movement followed proper tracking. The examiner noted that he or she could not manually dislocate or sublux the patella. There was evidence of patellar pain through patellar movement. There was no effusion or deformity. Occasional crepitus was noted. Flexion was from zero to 90 degrees actively, and from zero to 110 degrees passively. It was reported that the Veteran had full extension. The medio-lateral, collateral ligament, anterior and posterior cruciate ligaments, Lachman's, drawer and McMurray tests were all negative. There was evidence of pain throughout range of motion. Increasing pain was noted at the ends of motion, particularly in the passive range. Repetitive left knee movements did not show any change in the range of motion. The Veteran was observed to display muscle guarding and grunted throughout range of motion testing secondary to pain. The examiner opined that the appellant was functionally independent in all basic activities of daily living. It was reported that physical activity provoked flare-ups of left knee pain but did not limit occupational opportunity. An X-ray of the left knee yielded a diagnosis of a narrowed medial compartment with degenerative changes. Following physical examination the diagnosis was left knee residual patellofemoral syndrome with traumatic arthritis and a mild genu varus deformity. Received in April 2008 from I. R. Martin, III, M.D., was the report of a physical examination performed in January 2008. Among other things, it was reported that the Veteran complained of bilateral knee pain for which he took Celebrex. The appellant denied recent injury to the knees but stated that squatting hurt. It was noted that he had bilateral anterior and posterior knee pain with the left slightly worse than the right. On physical examination, there was no effusion. There was medial greater than lateral joint line tenderness. McMurray testing caused pain medially but not laterally. The Veteran had pain with patellofemoral compression. The anterior and posterior drawer signs were stable. An X-ray of the left knee disclosed normal bony mineralization with mild hypertrophy of the tibial eminences. Early osteophytes were present. No fracture or dislocation was appreciated. Following examination, the physician stated that the Veteran's knees probably had a combination of chondromalacia and meniscal tears. The knees were not judged bad enough to consider surgical intervention. VA evaluated the left knee for compensation purposes in July 2008. The Veteran reported worsening pain, especially with weightbearing, recurrent swelling, and weekly flare-ups precipitated by a lot of standing and walking. It was noted that knee pain was increased by his employment as a full-time truck driver, including prolonged sitting and driving, and getting into and out of the cab. The appellant related that he wore a left knee brace. He reported rarely using a cane, and that he was independent in activities of daily living. It was noted that his last full-time job was driving a truck but that he was currently unable to do so full time. The examiner opined that the Veteran "hedged" on this aspect and that he was uncertain. On physical examination, no swelling was present. Extension was to zero degrees and flexion was to 105 degrees. There was no additional limitation of motion after repetitive testing. Pain was reported throughout range of motion testing. The appellant had marked patellofemoral joint tenderness. Tenderness was elicited over a medial plica. No ligamentous laxity or instability was shown. Prior X-rays were reviewed. The appellant underwent a VA joints examination in January 2010. He stated that he had chronic left knee pain about 80 percent of the time, swelling, giving way, and flare-ups precipitated by cold weather. It was reported that he continued to take Celebrex and Lortab and achieved moderate relief. He related using a cane and a knee brace for each knee. He performed activities of daily living unassisted. On physical examination, the Veteran's gait was normal. It was observed that he did not have his walking cane. The left knee appeared to be grossly normal. The Lachman's, drawer and cruciate ligament tests for stability were normal. The collateral ligaments were normal. There was full extension and flexion was to 100 degrees. After repetitive motion, left knee motion was from zero to 94 degrees. There were no objective signs of pain during range of motion testing. An X-ray of the left knee showed arthritic changes with pointing of the tibial spines and eburnation about the edge of the bone. Magnetic Resonance Imaging (MRI) disclosed a questionable tear in the posterior horn of the medial meniscus, as well as degenerative changes with thinning of the cartilage in all three compartments. The examiner commented that he was unable to estimate left knee functionality without undue speculation. Records from Anderson Center Medical Center Emergency Room dated in June 2010 reflect that Veteran was treated after falling eight feet from the back of a trailer sustaining injury to the left shoulder and left knee. VA outpatient clinical records dated between 2011 and February 2012 do not reflect that the appellant sought any treatment for left knee complaints. Legal Analysis Following careful review of the record, the Board finds that no more than a 10 percent rating is warranted for the Veteran's left knee disability between August 1, 2008 and April 1, 2012. The evidence reflects that for that period, left knee posttraumatic arthritis with patellofemoral syndrome was manifested by symptoms that included pain, tenderness, limitation of motion and degenerative changes. The Veteran also complained of swelling and give-way weakness. An MRI in January 2010 was interpreted as indicating a questionable tear in the posterior horn of the medial meniscus. However, examination of the left knee disclosed no evidence of laxity or effusion on VA examinations between August 1, 2008 and April 1, 2012. In view of such, the Board finds that symptoms that included pain, tenderness, and a noncompensable limitation of motion were emblematic of left articular and periarticular pathology. Painful, unstable or malaligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint for which a 10 percent disability evaluation was awarded. See 38 C.F.R. § 4.59 (2013). The presence of periarticular pathology comports with Diagnostic Code 5010 that provides for a 10 percent evaluation when limitation of motion is noncompensable but affected by painful motion. In order to warrant a higher disability evaluation between August 1, 2008 and April 1, 2012 based on range of motion, the service-connected left knee disorder had to approximate the functional equivalent of limitation of flexion to 30 degrees and extension to 15 degrees due to any factor. DeLuca v. Brown, 8 Vet.App. 202 (1995). Here, VA examinations over the relevant time period show that the appellant always had full extension to 0 degrees, and flexion was from 100 to 115 on three VA examinations. Therefore, the most probative evidence establishes that the Veteran had substantially more flexion and extension than that required for a 20 percent disability evaluation under either 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261. As such, an evaluation in excess of 10 percent was not warranted between August 1, 2008 and April 1, 2012 based on limitation of flexion or extension. Review of the evidence between August 1, 2008 and April 1, 2012 discloses some complaints of left knee give-way weakness in 2010. However, testing exercises performed on examination disclosed no objective findings of subluxation or ligamentous laxity. Under the circumstances, Diagnostic Code 5257 is unavailing of a separate and/or compensable rating for the left knee based on a finding of instability. The Board has considered whether a higher disability evaluation may be awarded between August 1, 2008 and April 1, 2012 based on any other potentially applicable diagnostic codes pertaining to the left knee. However, the evidence demonstrates no ankylosis, malunion or nonunion of the tibia and fibula between the cited dates. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256 and 5262 (2013). Therefore, entitlement to a higher evaluation under those Diagnostic Codes is not warranted. In assessing the level of severity of the service-connected left knee disability from between August 1, 2008 and April 1, 2012, the Board considered functional impairment due to pain, weakness, fatigability, and incoordination. See DeLuca v. Brown, 8 Vet.App. 204-207 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013). The Board finds in this case, however, that the 10 percent disability evaluation established between August 1, 2008 and April 1, 2012 adequately contemplates the degree of functional loss associated with the left knee as no substantial functional incapacity, to include weakness, lack of endurance, or incoordination, etc., is demonstrated. The Veteran reported that medication alleviated his left knee symptoms. Although he had complaints that left knee symptomatology affected his duties as a truck driver, the evidence indicates that he was fully able to engage in his employment until his hours were curtailed due to the economy, as reported on a VA examination in December 2008. Although indicating in January 2010 that he was unable to perform truck driving full time, it was noted that he hedged and was uncertain when responding which possibly suggests some degree of deception. In any event, his activities of daily living remained unaffected otherwise and he was capable of living unassisted and independently. As reported above, he retains substantial left knee range of motion and has no other untoward symptomatology in this regard. As such, entitlement to a higher rating is not warranted between August 1, 2008 and April 1, 2012 as no significant functional loss was demonstrated. See 38 C.F.R. §§ 4.40, 4.45. The Board considered whether referral for extraschedular consideration is warranted under 38 C.F.R. § 3.321 (2013) but finds that there is no basis for further action as to this question. There is no indication of an exceptional disability picture such that the schedular evaluation for the service-connected left knee is inadequate. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). There is no objective evidence demonstrating that the appellant's service-connected left knee disability markedly interfered with employment beyond that contemplated by the rating schedule. There is no evidence showing that he was frequently hospitalized due to his left knee symptoms. The evidence reflects that the relative manifestations and the effects of the disability were fully considered and are contemplated by the rating schedule. Therefore, referral for an extraschedular rating is not necessary. Thun. Accordingly, the preponderance of the evidence is against entitlement to a rating in excess of 10 percent for left knee posttraumatic arthritis with patellofemoral syndrome from August 1, 2008 to April 1, 2012. There is no doubt to be resolved, and a higher evaluation is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to an evaluation in excess of 10 percent for left knee posttraumatic arthritis with patellofemoral syndrome from August 1, 2008 to April 1, 2012 is denied. REMAND Effective April 2, 2012, the Veteran was assigned a 20 percent disability evaluation for his left knee posttraumatic arthritis with patellofemoral syndrome. He, however, asserts that symptoms associated with such are more severely disabling than reflected by the currently assigned disability evaluation and warrant a higher rating. In this regard, correspondence was received from the appellant in April 2013 to the effect that his left knee gave way, locked up and popped out of joint causing him to fall. He stated that the knee swelled up with standing or walking for even short periods of time and that there had been no improvement. The Veteran related that he saw a VA physician every six months for knee symptoms, and that an updated knee brace was issued to him in October 2012 at the G.V. Montgomery VA Medical Center. Given the Veteran's contentions that his symptoms warrant a higher disability rating and are worse, and the fact that he has not been examined by VA for more than two years, a new examination is in order. The United States Court of Appeals for Veterans Claims (Court) has held that when a veteran claims that a disability is worse than when formerly rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. 38 C.F.R. § 3.326 (2013). The Veteran's statements also indicate that he receives ongoing VA outpatient treatment for the left knee disorder. The most recent records in this regard date through February 2012 on Virtual VA. As there is the potential existence of additional VA clinical data, all pertinent records dating since February 2012 must be secured. See Bell v. Derwinski, 2 Vet.App. 611 (1992). Therefore, VA treatment records dating from February 2012 to the present should be requested and associated with the claims folder. Accordingly, the case is REMANDED for the following actions: 1. Request VA outpatient records from the G.V. Montgomery VA Medical Center from March 2012 to the present and associate them with the claims folder. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for a VA orthopedic examination to evaluate the severity of his left knee posttraumatic arthritis with patellofemoral syndrome. The examiner must be provided access to the appellant's claims folder, Virtual VA file, VBMS file, and a copy of this remand. All indicated tests and studies should be conducted and clinical findings, to include range of motion studies, should be reported in detail. The examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the service-connected left knee disorder, and to what extent the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. A complete rationale must be provided for any opinion offered. 3. After taking any additional development deemed appropriate, re-adjudicate the Veteran's claim. If the benefit is not granted, issue the appellant and his representative a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board 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. 2013). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs