Citation Nr: 0811967 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 00-05 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for patellofemoral syndrome, right knee. 2. Entitlement to an initial evaluation in excess of 10 percent for patellofemoral syndrome, left knee. 3. Entitlement to a compensable initial rating for scars, right occipital head area. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The veteran had active service from September 1992 to September 1996. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of April 1999 by the Department of Veterans Affairs (VA) Chicago, Illinois, Regional Office (RO). The veteran's claims file was later transferred to the North Little Rock, Arkansas RO. FINDINGS OF FACT 1. The veteran's service-connected patellofemoral syndrome, right knee, is not manifested by more than slight impairment due to instability or subluxation or by flexion limited to 60 degrees or by extension limited to 5 degrees. 2. The veteran's service-connected patellofemoral syndrome, left knee, is not manifested by more than slight impairment due to instability or subluxation or by flexion limited to 60 degrees or by extension limited to 5 degrees. 3. The veteran has two small scars in the right occipital area which are no more than slightly disfiguring and have no characteristics of disfigurement. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for patellofemoral syndrome of the right knee are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2007). 2. The criteria for a disability evaluation in excess of 10 percent for patellofemoral syndrome of the left knee are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2007). 3. The criteria for a compensable disability evaluation for scars, right occipital head area, are not met. 38 C.F.R. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7800 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he is entitled to a higher initial disability evaluations for patellofemoral syndrome of the knees bilaterally and scars. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated by military service and the residual conditions in civilian occupations. 38 U.S.C.A.§ 1155; 38 C.F.R. §§ 3.321(a), 4.1. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. In initial ratings cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is noted that the veteran has failed to report for several scheduled VA examinations. In the absence of good cause, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (2007). The veteran has not submitted any evidence demonstrating good cause for missing any of the scheduled VA examinations. Accordingly, the Board has rated the veteran's claims based on the evidence of record. Bilateral Knees The veteran contends that he is entitled to a higher initial disability evaluation for patellofemoral syndrome of the knees bilaterally. The veteran was originally granted service connection for patellofemoral syndrome of the right knee and the left knee in a rating decision dated April 1999. The RO separately evaluated the veteran's knee disabilities under 38 C.F.R. § 4.71a, Diagnostic Code 5257 as non- compensable disabilities, effective October 29, 1998. A subsequent rating decision issued during the pendency of this appeal in June 2003 separately increased the veteran's disability evaluation for each knee under the same diagnostic code to 10 percent, effective October 29, 1998. The Board concludes that the preponderance of the evidence is against entitlement to a higher rating for either knee. Diagnostic Code 5257 requires a 10 percent evaluation for slight recurrent subluxation or lateral instability. A 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability. A 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2007). The medical evidence of record does not describe the veteran's bilateral knee instability as either moderate or severe. The veteran specifically denied any episodes of dislocation or subluxation during the December 1998 VA examination, and the August 2000 VA examiner noted that he gave no history of dislocation or recurrent subluxation. All stability tests performed during the 1998 and 2000 examinations were normal. During the 2003 VA examination, the veteran reported giving way, but all stability tests performed during the examination were negative. In addition, the 2003 examiner diagnosed "patella femoral pain syndrome, bilaterally without laxity." (emphasis added). Accordingly, a higher rating under Diagnostic Code 5257 is not warranted at any time during the appeal period. The Board has considered whether the evidence of record warrants a separate compensable rating for limitation of motion of the knees during this period. When a knee disability is already rated under Diagnostic Code 5257, a separate rating may be assigned if the veteran has limitation of motion which is at least noncompensable under Diagnostic Codes 5260 or 5261, including consideration of 38 C.F.R. § 4.40, 4.45, and 4.59. Cf. Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997) (assignment of zero-percent ratings is consistent with requirement that service connection may be granted only in cases of currently existing disability). See VAOPGCPREC 23-97 (1997); VAOPGCPREC 09-98 (1998). Normal range of motion of the knee on extension is to 0 degrees, while normal range of motion on flexion is to 140 degrees. See 38 C.F.R. § 4.71a, Plate II (2007). Under Diagnostic Code 5260, a non-compensable rating is warranted where flexion of the knee is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees, while a 20 percent rating is assigned where flexion is limited to 30 degrees. A 30 percent evaluation is warranted where flexion is limited to 15 degrees. Under Diagnostic Code 5261, a non-compensable rating is warranted where extension is limited to five degrees. A 10 percent rating is warranted where extension is limited to 10 degrees, while a 20 percent evaluation is assigned where extension is limited to 15 degrees. A 30 percent rating is assigned where extension is limited to 20 degrees. A 40 percent evaluation is warranted where extension is limited to 30 degrees, and a 50 percent evaluation is warranted where extension is limited to 45 degrees. In this case, a separate rating cannot be assigned under Diagnostic Codes 5260 or 5261 as the preponderance of the evidence shows that the veteran does not meet the criteria for even noncompensable limitation of motion for either knee during the appeal period. The preponderance of the evidence does not show that flexion of either knee is limited to 60 degrees or that extension is limited to 5 degrees, even with consideration of DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59. At no time did the medical evidence find limitation of flexion of either knee to 60 degrees. A review of the records reveals that pain free flexion was recorded as no less than 90 degrees at any time during the appeal period. While the veteran reported pain, stiffness, swelling, and easy fatigability precipitated by prolonged sitting or walking or going up steps in 2003, he had pain free flexion of the knee to 90 degrees. The examiner found only "very mild functional loss . . . in flexion only." Further, during his 1998 VA knee examination, he had full flexion and during his 2000 VA examination, he was able to flex to 130 degrees bilaterally without pain. Likewise, the veteran had full extension in the 1998 and 2003 examination reports. While the examiner noted grinding and popping and a sharp pain with full extension in 1998, he had full extension without pain during the 2003 VA examination. Thus, neither the 1998 nor the 2003 VA examination reports revealed that the criteria for even a noncompensable rating under Diagnostic Code 5261. The 2000 VA examination noted limitation of extension in the left (to 10 degrees without pain) which equates with a compensable rating for limitation of extension. The right knee, however, still showed a range of motion that did not meet the criteria for a noncompensable evaluation (to 5 degrees without pain and to 0 degrees with pain). Thus, the preponderance of the evidence, namely the 1998 and 2003 VA examination reports which found limitation of extension was less than noncompensable, outweighs the 2000 examination report which indicated that the veteran had compensable limitation of extension on the left. The Court has emphasized that when assigning a musculoskeletal disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disorder should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also 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. See 38 C.F.R. § 4.40. The factors of disability reside in the reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Even with consideration of the DeLuca factors, a separate, compensable rating for limitation of flexion or extension is not warranted. In 1998, the veteran complained of pain in the knees, crepitus, a sensation of tightness in the knees with prolonged sitting, and a sensation of weakness in the mornings. However, the 1998 examiner noted "[n]o" in response to a question in the examination report regarding the effect of the condition on the veteran's usual occupation and activities. In 2000, the veteran reported flare-ups seven to eight times a day when he has pain of 10 out of 10 for five to ten minutes at a time precipitated by prolonged walking or going up steps. However, he also reported that he had not missed any time from school during the past year due to his bilateral knee disability. Thus, the effect of the disability on his daily life was limited to modifying some activities, such as his weight training regimen, and minimally altering his shopping habits. The 2000 examiner assessed medium residual functional capacity, but explained that the veteran could still frequently lift 25 pounds, although he could only occasionally lift 50 pounds; he could sit, stand, or walk 6 hours of an 8 hour day with appropriate rest periods; he should avoid repetitive or power work with the lower extremities; and he should only occasionally bend, kneel, crouch, or crawl. Finally, despite very similar complaints (to those he reported in his earlier VA examinations) during his 2003 VA examination, and reports of missing approximately one month of school over the past year because of his bilateral knee condition; being unable to work out; and being limited to walking one-half mile on level ground and/or climbing no more than two flights of stairs, the examiner assessed only "very mild functional loss." Thus, the preponderance of the evidence of record shows that the veteran's service-connected bilateral knee disability had only a very mild to no impact on his functioning. As such, a higher evaluation is not warranted under DeLuca at any time during the appeal. Staged ratings for the left knee are not warranted as the factual findings do not show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The only medical evidence which revealed findings which tended to support a separate, compensable rating for limitation of extension of the left knee is the 2000 VA examination report. There is no other medical evidence of record which reveals symptoms that would warrant a higher rating, including private treatment records dated from May 2000 to July 2001. Thus, because there is only a single medical record which shows more significant left knee symptoms, the record reflects no "period of time" during which the veteran's symptoms equated with the criteria for a compensable, separate rating for limitation of extension of the left knee. Accordingly, as the medical evidence does not show a distinct time period where the a separate compensable evaluation was warranted for limitation of extension of the left knee, staged ratings are not necessary. Head Scars The veteran in this case also contends that he is entitled to an initial compensable disability rating for right occipital head scars. He was originally granted service connection for this disability in a rating decision dated April 1999 which evaluated the veteran's scars as a non-compensable disability under 38 C.F.R. § 4.118, Diagnostic Code 7800. Effective August 30, 2002, VA revised the criteria for evaluating skin disabilities. See 67 Fed. Reg. 49,590-49,599 (July 31, 2002). Prior to August 30, 2002, 38 C.F.R. § 4.118, Diagnostic Code 7800 assigned a non-compensable evaluation for slight scars disfiguring the head, face, or neck. A 10 percent evaluation was assigned for moderate scars disfiguring the head, face, or neck. A 30 percent evaluation was assigned for severe scars disfiguring the head, face, or neck, especially if producing a marked and unsightly deformity of eyelids, lips, or auricles. A 50 percent evaluation was assigned for a complete or exceptionally repugnant deformity of one side of the face or marked or repugnant bilateral disfigurement. An additional note provided that when in addition to tissue loss and cicatrization there is marked discoloration, color contrast, or the like, the 50 percent rating under Code 7800 may be increased to 80 percent, the 30 percent to 50 percent, and the 10 percent to 30 percent. The most repugnant, disfiguring conditions, including scars and diseases of the skin, may be submitted for central office rating, with several unretouched photographs. After August 30, 2002, a 10 percent evaluation is assigned for disfigurement of the head, face, or neck with one characteristic of disfigurement. A 30 percent evaluation is assigned for disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent evaluation is assigned for disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two feature or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent evaluation is assigned for disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. According to Note (1), the eight characteristics of disfigurement, for purposes of evaluation under § 4.118 are as follows: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at widest part. Surface contour of scar elevated or depressed on palpitation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). The Board finds that, with application of either the old or the new scar regulations, the preponderance of the evidence is against the claim for a higher initial evaluation for scars. With regard to application of the old rating criteria for scars, a higher rating is not warranted. The evidence shows that the scars are no more than slightly disfiguring. The 1998 VA scars examiner opined that the scars were not disfiguring as "[t]hey are in his hair line and not visible under his hair." The 2000 VA scars examiner opined that "[t]here is no disfigurement" with regard to the scars. A higher rating is also not warranted with application of the new rating criteria for scars. The medical evidence, including the 1998 and 2000 scar examination reports, shows that the veteran's scars have no characteristics of disfigurement as defined in 38 C.F.R. § 4.118. Neither scar is 13 or more centimeters in length: the longest of the veteran's scars is 1 centimeter. Neither scar is at least 0.6 centimeters wide: both scars are only 0.4 centimeters wide. Likewise, the medical evidence, specifically the 1998 VA scars examination, shows that the scars are not adherent or elevated or depressed. Given the small size of the scars, they do not meet any of the remaining criteria as they do not cover an area exceeding six square inches. The Board has also considered the potential application of various other provisions of the regulations governing VA benefits in effect prior to August 30, 2002, whether or not they were raised by the veteran. The Board finds that Diagnostic Codes 7801 and 7802, which contemplated scars based on second and third degree burns, are not applicable in this instance. The veteran in this case was purportedly assaulted in-service and struck in the head with an object, possibly a bottle. Similarly, Diagnostic Code 7803 for unstable scars is not applicable because the preponderance of the evidence shows the veteran's scar did not have frequent loss of covering of skin over the scar. The 1998 scars examiner noted that there was no ulceration and the 1998 general medical examination report described the scars as "well-healed." Diagnostic Code 7804, which contemplates superficial scars tender and painful on objective demonstration, is also not for application. Both the December 1998 and the August 2000 VA skin examiners found no tenderness on examination. In view of the foregoing, the preponderance of the evidence is against the veteran's claim for a higher initial rating for his service-connected scars. The evidence is not so evenly balanced so as to allow application of the benefit of the doubt rule. 38 U.S.C.A. § 5107(b) (West 2002). Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the veteran is expected to provide; and (4) must ask the veteran to provide any evidence in his possession that pertains to the claim 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 agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further observes that during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the veteran has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. The Board finds that the content requirements of the duty to notify the veteran have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Board notes that the veteran's claim was adjudicated and that he was granted service connection in a rating decision dated April 1999 for residual scars on the occipital right side of the head, patellofemoral syndrome, right knee, and patellofemoral syndrome, left knee. Thus, all three claims were substantiated at that time. As a result, the 38 U.S.C.A. § 5103(a) notice served its purpose and its application was no longer required. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). Regardless, appropriate notice, including Dingess notice, was provided in a September 2006 letter which was followed by a readjudication of the claims in a September 2007 supplemental statement of the case. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issue has been obtained. The veteran's service medical records have been obtained. The veteran's available post-service treatment records have been obtained. The RO attempted to develop evidence from a Dr. H. at the Cooper Clinic in April 2002; however, that office responded that the authorization supplied by VA was too old. In February 2003 the veteran was advised that the Cooper Clinic records had not been received and directed the veteran to obtain the evidence and submit it on his own behalf. He was also advised that if the evidence was not received within 30 days, the claim would be considered based on the evidence of record. Based on these facts, the Board finds that the duty to assist has been satisfied with regard to the Cooper Clinic records as VA made reasonable efforts to obtain the records and after doing so, advised the veteran that it was his responsibility to associate the records with the claims folders. In any event, further attempts to obtain another authorization from the veteran would be futile as, as explained below, the veteran has not kept VA advised to his whereabouts. The veteran was afforded multiple C&P examinations in connection with the current claims: he was provided three examinations with regard to his bilateral knee claim, in 1998, 2000, and 2003, and he was provided two examinations in 1998 and 2000 with regard to his scars claim. Numerous attempts were made by VA to develop additional VA examination reports; however, the veteran has repeatedly failed to report for VA examinations scheduled since 2003. The veteran's representative has requested that VA schedule additional examinations for the veteran. See February 2008 informal hearing presentation. However, for the reasons outlined below, VA has satisfied its duty to assist with regard to VA examinations in this matter. This case was remanded by the Board in 2004, in part, in order to obtain contemporaneous VA examinations of the knees and scars. VA attempted to schedule the veteran for examinations in September 2004; however, all mail sent to the veteran was returned as undeliverable and unable to forward. VA was finally able to contact the veteran telephonically in 2006 after months of searching for his whereabouts, including contacting his bank for his current address information. In August 2006 he was living in San Diego, and he informed VA that he was moving in 2 weeks to Houston. He reported that he did not have a Houston address as yet. He was advised to contact VA when he had a new address so his examinations could be scheduled. Correspondence sent to the veteran in San Diego prior to his departure advised him again that VA would wait for a response from him before scheduling his examinations. Since that time, the claims folders do not show that the veteran has initiated any contact with VA. VA performed its own address searches and scheduled the veteran for two VA examinations, in February and September 2007. The veteran failed to report for the scheduled examinations both times. It remains unclear from the file whether VA has the veteran's current address. The Court has stated that, "[i]n the normal course of events, it is the burden of the veteran to keep the VA apprised of his whereabouts. If he does not do so, there is no burden on the part of the VA to turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1994). The veteran's representative acknowledged that the veteran had moved multiple times since this claim was remanded by the Board for additional evidentiary development in 2004, and conceded that the veteran failed to report for the scheduled VA examinations. Thus, the Board finds that VA is not obligated to undertake additional measures in an attempt to locate the veteran for the purpose of rescheduling the missed VA examinations. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the veteran's claims. Therefore, no further assistance to the veteran with the development of the evidence is required. ORDER An evaluation in excess of 10 percent for patellofemoral syndrome, right knee, is denied. An evaluation in excess of 10 percent for patellofemoral syndrome, left knee, is denied. A claim for a higher initial evaluation for right occipital head scars is denied, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs