Citation Nr: 0309373 Decision Date: 05/21/03 Archive Date: 05/27/03 DOCKET NO. 00-03 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES Entitlement to a rating in excess of 10 percent for chondromalacia of the patella, left knee. Entitlement to a rating in excess of 10 percent for chondromalacia of the patella, right knee. Entitlement to a rating in excess of 10 percent for low back strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. K. ErkenBrack, Counsel INTRODUCTION The veteran served on active duty from May 1995 to March 1998. This appeal comes to the Board of Veterans' Appeals (Board) from a June 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) at New Orleans, Louisiana. That decision granted service connection for the disabilities at issue, and assigned the disability evaluations that are on appeal. The issue of entitlement to a rating in excess of 10 percent for low back strain is the subject of the remand portion of this decision. FINDINGS OF FACT 1. Chondromalacia of the patella, left knee, is equivalent in severity to no more than slight impairment from left knee recurrent subluxation or lateral instability. 2. Chondromalacia of the patella, right knee, is equivalent in severity to no more than slight impairment from right knee recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for chondromalacia of the patella, left knee, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.20, 4.71a, Diagnostic Code 5257 (2002). 2. The criteria for a rating in excess of 10 percent for chondromalacia of the patella, right knee, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.20, 4.71a, Diagnostic Code 5257 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Rating Criteria Disability evaluations are determined by comparing the veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation 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. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2. Where as here, the veteran disagrees with the initial assigned disability ratings, it is possible for a veteran to be awarded separate percentage ratings for separate periods based on the facts found during the appeal period or staged ratings. Fenderson v. West, 12 Vet. App. 119 (1999) Where the particular disability for which the veteran is service connected is not listed, it will be permissible to rate under a closely related disease or injury in which not only are the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 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. 38 C.F.R. § 4.40. 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 (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (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. Diagnostic Code 5257 rates impairment resulting from recurrent subluxation or lateral instability of the knee. Diagnostic Code 5257 provides for a 10 percent rating for knee impairment characterized by slight recurrent subluxation or lateral instability, a 20 percent evaluation for knee impairment defined as moderate recurrent subluxation or lateral instability, and a 30 percent rating for knee impairment manifested by severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Other applicable diagnostic codes provide a 20 percent rating for limitation of flexion of the knee to 30 degrees (Diagnostic Code 5260) or limitation of extension of the knee to 15 degrees (Diagnostic Code 5261). The average normal range of motion of the knee is from 0 degrees (extension) to 140 degrees (flexion). 38 C.F.R. § 4.71, Plate II (2002). Background The service medical records disclose that the veteran was seen initially for right knee pain in May 1995. An X-ray examination of the right knee showed no clinically significant radiologic abnormalities. A bone scan of the right knee was negative for an acute disease process. In November 1995, the veteran again complained of right knee pain over a 6-month period, which was aggravated by running and negotiating stairs. Retropatellar pain syndrome with mild symptoms was assessed. Over the next several months, she was seen several times for knee pain and she was placed on a physical profile. Magnetic resonance imaging of the right knee was unremarkable. The most consistent assessment was retropatellar pain syndrome. The service medical records also disclose that, between November 1995 and January 1996, the veteran was seen several times for left knee pain. The assessment was retropatellar pain syndrome. On initial VA examination in June 1998, the veteran complained of bilateral knee pain with pain negotiating stairs. She also complained of instability and locking. The pain was located about the patella and anterior knee area. She could toe and heel walk without difficulty. Left knee range of motion was termed full. Right knee range of motion was from -5 to 110 degrees. There was tenderness about the patellae, more so on the right, and crepitation on motion. There was no ligamentous laxity or damage of the cruciate ligaments or menisci. X-rays were negative. The diagnosis was patellar chondromalacia, bilaterally. VA outpatient treatment records show that the veteran was seen for complaints of knee pain in October 1998. She reportedly was in the National Guard, which was giving her trouble about her physical training testing. She felt that she could not run because of her knee problems. Knee pain was assessed. In November 1998, she complained of knee pain but not physical abnormality was detected. Knee pain, probably musculoskeletal in nature, was assessed. On a VA examination in December 1999, the veteran complained again of bilateral knee pain with problems on stairs and she was unable to squat. She complained that her knees locked and the right knee was unstable. The physical examination showed full range of motion, bilaterally, with some tenderness under the patellar area, mainly on the right side. There was no swelling or ligamentous laxity. There were no signs of cruciate ligament or menisci damage. X-rays were negative and showed no change since June 1998. The diagnosis was mild chondromalacia of the patellae. Analysis Schedular Rating The veteran's current 10 percent rating for each knee disability has been assigned by the RO under Diagnostic Code 5257, pertaining to knee instability with recurrent subluxation or lateral instability. The medical examinations and treatment records from 1998 and 1999 show that the veteran complained of bilateral knee pain and instability. The examinations showed that both knees were stable on objective testing. The Board must conclude that there is at most slight, if any, recurrent subluxation or lateral instability of the left or right knee, and no more than a 10 percent rating is warranted under Diagnostic Code 5257 for either knee. As for other applicable criteria, under DCs 5260 and 5261, pertaining to range of motion, there is full extension and flexion of the left knee reported on both VA examinations. Although there was some variation in the examination results for the right knee, on the 1998 examination, for example, range of motion was from -5 to 110 degrees. Such is to be rated 0 percent under limitation-of-motion Diagnostic Codes 5260 and 5261. On the 1999 examination, the right knee was found to have full extension and flexion. As for pain, even assuming there is some additional restriction due to pain on use, it is not shown that such is to a compensable degree under the limitation-of-motion codes. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet.App. 202 (1995). Multiple X-ray studies show no arthritis, and thus there is no basis for rating the disabilities under arthritis Diagnostic Codes 5003 and 5010. Dual ratings for a knee condition are permitted based on instability (Code 5257) and based on arthritis with limitation of motion (Codes 5003 and 5010). VAOPGCPREC 9-98 and 23-97. However, a dual rating is not permitted in the present case, as there is no arthritis of either knee. Accordingly, the Board finds that more than slight impairment of either knee is not shown and there are no manifestations of either knee to satisfy a higher rating under any other applicable Diagnostic Code for knee disability. The Board further finds that the disabilities have not undergone any increase in severity during the appeal period to support "staged" ratings. For these reasons, the preponderance of the evidence is against a rating higher than 10 percent for either knee. Thus the benefit -of-the-doubt rule does not apply. Extraschedular Rating The Board finds that an extraschedular rating is not warranted for the service-connected bilateral chondromalacia because the evidence does not show that either of these two disabilities presents an unusual or exceptional disability picture on the basis of such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular scheduler standards. 38 C.F.R. § 3.321(b)(1). Although the symptoms associated with the disabilities could have an adverse effect on employment, the schedular rating criteria are designed to take such factors into account. Indeed, the schedule is intended to compensate for average impairments in earning capacity resulting from service- connected disability in civil occupations. 38 C.F.R. § 1155. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Significantly, neither of these two disabilities has required any post-service period of hospitalization and neither of the two disabilities is shown to have markedly interfered with employment. The evidence does not indicate that either of these two service-connected disabilities is so unusual as to render impractical the application of the regular schedular criteria and referral to the RO for consideration of an extraschedular rating in the first instance. VCAA While the claims was pending, the Veterans Claims Assistance Act of 2000 (VCAA) amended VA's assistance to claimants of veterans benefits, including new provisions codified at 38 U.S.C.A. §§ 5103, 5103A (West 2002). The new § 5103 requires VA to notify the claimant of what information and evidence, not already of record, is necessary to substantiate the claim, indicating which information and evidence is to be provided by the claimant and which VA will attempt to obtain on behalf of the claimant. The file shows that through the rating decisions, the statement of the case and the supplemental statement of the case, the veteran has been notified of the evidence necessary to substantiate her claims for increases in the 10 percent ratings for the knee disabilities. Furthermore, under the duty to notify the veteran what part of the evidence is to be provided by her and what part VA will attempt to obtain for the her, VA notified the veteran in the April 2002 supplemental statement of the case and in a May 2002 letter that VA would obtain all relevant evidence in the custody of a Federal department or agency, including VA and the service department. She was advised to identify any other evidence, not already of record, so that VA could obtain it with a properly executed release from her or she could submit the evidence herself. Accordingly, the Board finds that the notice provisions of the VCAA have been satisfied. The new § 5103A requires VA to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. After the RO's notice, the veteran did not identify any additional information or evidence to substantiate her claims. And as there is no additional evidence to obtain, the Board concludes that the duty-to- assist provisions of the VCAA have been complied with. ORDER A rating in excess of 10 percent for chondromalacia of the patella, left knee, is denied. A rating in excess of 10 percent for chondromalacia of the patella, right knee, is denied. REMAND On examination in December 1999, the veteran complained that her back hurt daily. It was not indicated in the report, the extent, if any, pain affects motion or results in additional functional loss. Accordingly, the case is remanded for the following actions: 1. Obtain VA outpatient treatment records, relating to low back strain, since April 1999. 2. Schedule the veteran for a VA orthopedic examination to ascertain the current severity of low back strain. The claims file must be made available to the examiner for review prior to the examination. All indicated tests should be accomplished. The examiner must provide range of motion findings, expressed in degrees. The examiner is to comment on functional loss due pain as evidenced by the visible behavior of the veteran undertaking the motion. The examiner is also asked to express an opinion on whether pain could significantly limit functional ability on repeated use or during flare-ups. If feasible, any such functional loss, should be expressed in terms of additional loss of range of motion. Also, the examiner should specifically confirm or rule-out whether the veteran has swelling and/or muscle spasm of the lumbosacral spine area. 3. Thereafter, the RO should readjudicate the claim. If the benefit sought on appeal remains denied, the veteran and her representative should be provided a supplemental statement of the case. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ____________________________________________ GEORGE E. GUIDO JR. Acting Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. ? (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.