Citation Nr: 0811941 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 07-30 106 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for musculoligamentous strain of the left knee, status post femur fracture. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for Meniere's syndrome. REPRESENTATION Appellant represented by: Kurt P. Leffler, Attorney at Law ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from June 1964 to March 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March and May 2007 decisions by the RO that together granted service connection for musculoligamentous strain of the left knee, status post femur fracture, evaluated as 10 percent disabling, and denied service connection for a right knee disability and Meniere's syndrome. FINDINGS OF FACT 1. The veteran's left knee disability is manifested by x-ray evidence of degenerative joint disease and an active range of motion from 10 to 90 degrees with stiffness, weakness, flare- ups of pain, tenderness, and decreased endurance for daily activities; his disability is not objectively manifested by instability, subluxation, locking, effusion, genu recurvatum, or impairment of the tibia or fibula, and the overall level of disability in the knee is no more than "moderate." 2. The veteran has degenerative joint disease of the right knee; no competent evidence has been received to show that the disability was manifested to a compensable degree within one year of service or to indicate that it may otherwise be associated with an event, injury, or disease in service or with another service-connected disability. 3. The veteran likely has Meniere's syndrome; however, it cannot be attributed to his period of active military service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the veteran's favor, the criteria for the assignment of a 20 percent rating for musculoligamentous strain of the left knee, status post femur fracture, have been met; a rating in excess of 20 percent is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5255, 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (2007). 2. A right knee disability was not incurred in or aggravated by service and has not been caused or aggravated by a service-connected disability; arthritis of the right knee may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2007); 38 C.F.R. § 3.310 (2006). 3. Meniere's syndrome was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks an initial rating in excess of 10 percent for service-connected musculoligamentous strain of the left knee, status post femur fracture. He also seeks to establish service connection for right knee disability and Meniere's syndrome. I. Preliminary Matters On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)). The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. A. The Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA notice requirements apply generally to all five elements of a service connection claim; namely, (1) veteran status, (2) existence of a disability, (3) a connection between the veteran's service and the disability, (4) degree of disability, and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Ordinarily, notice with respect to each of these elements must be provided to the claimant prior to the initial unfavorable decision by the agency of original jurisdiction. Id. In the present case, the Board finds that VA has satisfied its duty to notify. By way of pre-adjudicatory VCAA notice letters sent to the veteran on March 16 and 20, 2006 and May 2, 2007, the RO informed the veteran of the information and evidence required to substantiate his claims. He was notified of his and VA's respective duties for obtaining the information and evidence, and he was asked to send any pertinent evidence in his possession. He was also informed of the manner in which disability ratings and effective dates are assigned for awards of disability benefits. No corrective action is necessary. B. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2007). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). Under applicable law, a medical examination and/or opinion is deemed "necessary" if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2007). In the present case, the Board finds that the duty to assist has been fulfilled. The veteran's service medical records have been obtained, as have records of post-service private and VA medical treatment, and he has been examined for purposes of obtaining information relating to the severity of his left knee disability and the etiology of his Meniere's syndrome. The Board acknowledges that no medical examination or opinion has been obtained in connection with the veteran's right knee claim. However, the veteran's service medical records are entirely negative for any complaints of, or treatment for, a right knee disorder. The veteran has not alleged that he suffered an event, injury, or disease during service involving his right knee, or that he has had continuity of symptoms since service, and the record on appeal contains no competent evidence to show that the current disability was manifested to a compensable degree within one year of service or to otherwise indicate that the disorder may be associated with an event, injury, or disease in service or with another service-connected disability. As a result, no medical examination or opinion is required. See, e.g., See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding, in part, that an examination may be required under the provisions of 38 C.F.R. § 3.159(c)(4) if the record on appeal contains medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation). Accordingly, and because the veteran has not identified and/or provided releases for any other evidence that needs to be procured, no further development action is necessary. II. The Merits of the Veteran's Claims A. The Claim for a Higher Initial Evaluation for the Left Knee Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two 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 (2007). VA regulations define disability of the musculoskeletal system primarily as "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." 38 C.F.R. § 4.40 (2007). To that end, section 4.40 provides that: 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. With regard to disorders of the joints, applicable regulations provide that "the factors of disability reside in reductions of their normal excursion of movements in different planes." 38 C.F.R. § 4.45 (2007). To that end, the regulations provide that, when rating disabilities of the joints, inquiry will be directed to considerations such as: (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. Id. The regulations further provide that instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are also to be considered. Id. § 4.45(f). See also 38 C.F.R. § 4.59 (2007) ("The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability"); DeLuca v. Brown, 8 Vet. App. 202 (1995). Degenerative or traumatic arthritis, established by X-ray findings, is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2007). If the limitation of motion of the involved joint(s) is noncompensable under the appropriate diagnostic code(s), a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Knee disabilities manifested by limitation of flexion are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2007). A 10 percent rating is warranted for limitation of flexion to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2007). A 20 percent rating is warranted for limitation of flexion to 30 degrees, and a 30 percent rating is warranted for limitation of flexion to 15 degrees. Id. Knee disabilities manifested by limitation of extension are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2007). Ratings of 10, 20, 30, and 40 percent are warranted when extension is limited to 10, 15, 20, and 30 degrees, respectively. The highest evaluation, 50 percent, is warranted when extension is limited to 45 degrees. Id. Knee disabilities manifested by recurrent subluxation and lateral instability are evaluated in accordance with the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2007). Ratings of 10, 20, and 30 percent, respectively, are warranted for slight, moderate, and severe recurrent subluxation or lateral instability. Id. Knee disability due to impairment of the femur is evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5255 (2007). Ratings of 10, 20, and 30 percent, respectively, are warranted for malunion of the femur with slight, moderate, and marked knee disability. Id. Knee disabilities may also be rated under Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 (2007). Under Diagnostic Code 5256, ratings of up to 60 percent are available for ankylosis of the knee. Under Diagnostic Code 5258, a 20 percent rating may be assigned for dislocation of the semilunar cartilage, with frequent episodes of "locking", pain, and effusion into the joint. Under Diagnostic Code 5259, a 10 percent rating may be assigned for symptomatic removal of semilunar cartilage. Under Diagnostic Code 5262, ratings of 10, 20, and 30 percent, respectively, can be assigned for malunion of the tibia and fibula with slight, moderate, or marked knee or ankle disability. If there is nonunion of the tibia and fibula, with loose motion requiring a brace, a 40 percent rating is assigned. Finally, Diagnostic Code 5263 provides a single 10 percent rating for genu recurvatum, acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated. Separate evaluations may be assigned for non-overlapping manifestations of knee disability. See, e.g., 38 C.F.R. § 4.14 (2007); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); VAOPGCPREC 9-2004, 69 Fed. Reg. 59,990 (Oct. 6, 2004) (separate ratings for limitation of flexion and extension of the knee); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703-04 (Oct. 22, 1998) (separate ratings for instability and limitation of motion); VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (Dec. 1, 1997) (to the same effect). However, the combined evaluation for the affected leg cannot exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68 (2007). In the present case, the record shows that the veteran has been granted service connection for musculoligamentous strain of the left knee on the basis of in-service aggravation of a preexisting left leg injury involving open reduction of a fracture of the left femur. The disorder has been rated 10 percent disabling under Diagnostic Code 5255 since March 2006. Following a thorough review of the record, the Board finds that the evidence supports the assignment of a 20 percent rating for the veteran's left knee disability under Diagnostic Code 5255. The record shows that the veteran has degenerative joint disease of the knee, with some lateral tracking of the patella, and that his disability is manifested by complaints of daily pain, early morning stiffness, weakness, flare-ups, and decreased endurance for daily activities such as standing, walking, lifting, and carrying. He has difficulty climbing stairs, and his range of motion is objectively limited. He is very tender to palpation along the lateral joint line and he has significant discomfort with anterior/posterior and varus/valgus stresses. A VA physician who examined the veteran in April 2006 indicated that his disability had a "significant" occupational effect, that it prevented him from engaging in exercise, sports, or recreation, and that it moderately impaired his ability to participate in daily activities such as traveling, dressing, bathing, and grooming. Under the circumstances, the Board is persuaded that the veteran's left knee impairment can properly be characterized as "moderate," so as to warrant the assignment of a 20 percent rating under Diagnostic Code 5255. The evidence, at a minimum, gives rise to a reasonable doubt on the question. 38 C.F.R. § 4.3 (2007). A rating in excess of 20 percent is not warranted, however. The range of motion in the veteran's knee has been described on several occasions, and he has never been found to have flexion limited to more than 90 degrees, whether by pain or otherwise. On one occasion, on VA examination in May 2007, it was noted that extension of the knee was limited to 10 degrees with repeated exercise. That sort of limited motion would ordinarily warrant a 10 percent rating under Diagnostic Code 5261. (VA physicians who examined the veteran in April 2006 and May 2007 both opined that they could not express further opinions as to functional loss without resort to speculation. See DeLuca, supra.) However, Diagnostic Code 5261 is premised, in part, on pain; a factor which is already contemplated by the rating currently assigned under Diagnostic Code 5255. Assigning separate ratings for the same disabling manifestation is prohibited by 38 C.F.R. § 4.14. Consequently, the Board finds no evidentiary basis for the assignment of a higher evaluation for the veteran's disability under Diagnostic Codes 5003, 5010, 5260, and/or 5261. As noted above, the veteran complains of daily pain, early morning stiffness, weakness, flare-ups, and decreased endurance for daily activities such as standing, walking, lifting, and carrying. As mentioned previously, however, he generally has an active range of motion in his knee from at least 10 to 90 degrees. The evidence shows that he has not had any post-service surgical interventions, injections, or hospitalizations for the knee, that he can stand and walk on the knee (albeit on a limited basis), and that he does require any type of assistive device or brace. In addition, there is no evidence of disuse, such as atrophy. Nor are there problems with dislocation or incoordination. His gait has been described as "minimally antalgic," with no evidence of abnormal weight bearing, and his degenerative joint disease and lateral tracking of the left patella have similarly been characterized as very mild or minimal. In the Board's view, the weight of the evidence demonstrates that the veteran's overall knee disability is no more than "moderate," as that term is used in Diagnostic Code 5255. The Board has considered whether higher and/or separate ratings should be assigned for the veteran's left knee disability under Diagnostic Codes 5256, 5257, 5258, 5259, 5262, and/or 5263, and has concluded that they should not. The evidence clearly shows that the veteran has motion in his knee, and that it is not ankylosed. The record does not show that he suffers from any service-connected malunion or nonunion of the tibia or fibula. Although he complains that his knee feels as though it "gives way" at times, and an August 2004 report from a private physician, Gary L. Rademacher, indicates that his left knee may have exhibited some laxity in the past, the medical evidence contemporaneous with his claim (i.e., the April 2006 and May 2007 VA examination reports) shows that the knee is objectively stable with no ligamentous laxity. Further, there is no objective evidence of recurrent subluxation, genu varum, locking, or effusion, and no evidence that his semilunar cartilage has been removed. It is the Board's conclusion, therefore, that there is no basis for the assignment of a separate and/or higher schedular rating under any of these diagnostic codes. In evaluating this claim, the Board has specifically considered whether the veteran is entitled to a "staged rating." See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). It is the Board's conclusion, however, that the veteran's left knee disability has never been more than 20 percent disabling since the time that the underlying claim for service connection was filed. A "staged rating" is not warranted. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer a case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2007). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Board has considered whether the veteran's claim should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted. The record does not show that he has been recently hospitalized for problems with his left knee, and there is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. B. The Claims for Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). Service connection is also warranted where the evidence of record shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2007); 38 C.F.R. § 3.310 (2006); Allen v. Brown, 7 Vet. App. 439 (1995). Generally, in order to prove service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Pond v. West, 12 Vet. App. 341, 346 (1999). However, if arthritis becomes manifest to a degree of 10 percent or more during the one-year period following a veteran's separation from active service, the condition may be presumed to have been incurred in service, notwithstanding that there is no in-service record of the disorder. 38 U.S.C.A. § 1112 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). 1. The Right Knee In the present case, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for a right knee disability. A VA examination report, dated in March 2007, shows that the veteran has a current, diagnosed disability of the right knee; namely, degenerative joint disease. As noted previously, however, his service medical records are entirely negative for any complaints of, or treatment for, a right knee disorder. See discussion, Part I.B, supra. The veteran has not alleged that he suffered an event, injury, or disease during service involving his right knee, or that he has had continuity of symptoms since service, and the record on appeal contains no competent evidence to show that the current disability was manifested to a compensable degree within one year of service or to otherwise indicate that the disorder may be associated with an event, injury, or disease in service or with another service-connected disability. The claim must be denied. 2. Meniere's Syndrome The Board also finds that the preponderance of the evidence is against the veteran's claim for service connection for Meniere's syndrome. Meniere's syndrome (also known as Meniere's disease) is a disability manifested by hearing loss, tinnitus, and vertigo resulting from non-suppurative disease of the labyrinth. Dorland's Illustrated Medical Dictionary 486 (28th ed. 1994). The evidence of record establishes that it is "likely" that the veteran has this disorder. However, the greater weight of the evidence demonstrates that the disorder cannot be attributed to his period of military service. The veteran's service medical records are completely devoid of any complaints of, or treatment for, hearing loss, tinnitus, or vertigo. Moreover, he has indicated that he first had trouble with Meniere's disease, including dizziness, sometime around the early or mid-1980's; a number of years after his separation from service. Notably, however, the veteran has been service connected for hearing loss and tinnitus on the basis of in-service acoustic trauma. The record contains an opinion from a private physician, Thomas S. Nabity, M.D., dated in April 2007, which indicates that the veteran's Meniere's syndrome "is more likely than not" attributable to the same etiology (i.e., acoustic trauma in service). The record also contains opinions from two VA physicians, dated in June and September 2007, to the effect that such a relationship is unlikely. The Board has reviewed these three opinions, together with the other evidence of record, and concludes that the opinions from the two VA examiners are the most probative. Both of those examiners reviewed the veteran's claims file prior to rendering their opinions, and supported their conclusions with reference to relevant medical literature. More specifically, the June 2007 examiner cited a 2003 article from Otology & Neurotology that concluded, based on a study of 17,425 veterans from the Israeli Defense Force, that there was no support for the hypothesis that Meniere's disease may be causally related to previous acoustic trauma or noise- induced hearing loss. The September 2007 examiner similarly observed, with oblique reference to the study, that peripheral vestibular dysfunction "has not been linked to previous acoustic trauma." The private examiner, by contrast, did not support his conclusion with any substantive rationale. Nor is it shown that he reviewed the claims folder prior to offering his opinion on the matter. Under the circumstances, it is the Board's conclusion that the greater weight of the evidence is against the claim. The appeal of this issue must be denied. ORDER A 20 percent rating is granted for musculoligamentous strain of the left knee, status post femur fracture, subject to the law and regulations governing the award of monetary benefits. Service connection for right knee disability is denied. Service connection for Meniere's syndrome is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs