Citation Nr: 0813078 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 06-01 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for left knee patellofemoral syndrome (also shown as right knee strain). 2. Entitlement to an initial evaluation in excess of 10 percent for right knee patellofemoral syndrome (also shown as right knee strain). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran had active service from June 2002 to November 2002 and from February 2003 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating determination of the Milwaukee, Wisconsin, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for right and left knee strains and assigned separate 10 percent disability evaluations, effective May 19, 2004. FINDINGS OF FACT 1. Since the effective date of service connection flexion of the right and left knees has been limited to no less than 130 degrees and extension has not been limited, even when considering functional factors. 2. Subluxation or lateral instability has not been demonstrated at any time. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for left knee patellofemoral syndrome have not been met at any time. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2007). 2. The criteria for an evaluation in excess of 10 percent for right knee patellofemoral syndrome have not been met at any time. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). This appeal arises from disagreement with the initial evaluations following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). There has been compliance with the assistance requirements of the VCAA. All available service medical, VA, and private treatment records have been obtained. No other relevant records have been identified. The veteran was afforded necessary VA examinations. Based upon the foregoing, no further action is necessary to assist the veteran in substantiating the claim. Right and Left Knee Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability there from, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2007). Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes disabled on use must be regarded as seriously disabled. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is to be considered in evaluating the degree of disability, but a little-used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, the condition of the skin, absence of normal callosity, or the like. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as at least minimally compensable. See also DeLuca v. Brown, 8 Vet. App. 202 (1995) (indicates that pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain may be the basis for a rating for a disability rated based on limitation of motion, regardless of whether or not the limitation of motion specified in the Diagnostic Code criteria is shown). Diagnostic Code 5003 (5010) provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). 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 or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned where X-ray evidence shows involvement of two or more major joints or 2 or more minor joint groups. Where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent evaluation is assigned. Note (1) to Diagnostic Code 5003 states that the 20 and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Id. 38 C.F.R. § 4.71a, Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent rating when there is severe recurrent subluxation or lateral instability. Limitation of motion of the knee is addressed in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is limited to 60 degrees; 10 percent rating where flexion is limited to 45 degrees; 20 percent rating where flexion is limited to 30 degrees; and 30 percent rating where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to 5 degrees; 10 percent rating where extension is limited to 10 degrees; 20 percent rating where extension is limited to 15 degrees; a 30 percent rating where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The knee is considered a major joint. 38 C.F.R. § 4.45(f). The normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71, Plate II (2007). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). The General Counsel further held that separate ratings could also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The veteran requested service connection for right and left knee conditions in May 2004. VA outpatient treatment records received in conjunction with the claim reveal that at the time of a June 2004 visit, the veteran was noted to be experiencing bilateral knee pain. At times she felt as if she could not walk down stairs. The pain could last a few minutes to a few hours. She denied any swelling or redness. Physical examination revealed full range of motion for the knees. The veteran denied any pain and Lachman's and Drawer testing were negative. A diagnosis of bilateral knee pain was rendered. At the time of a July 2004 visit, the veteran reported having bilateral knee pain. Physical examination revealed full flexion and extension. The veteran noted that the pain and frequency of the pain was less intense. Tenderness was present along the left and right medial and lateral joint lines and the right distal femur. The ligaments were intact bilaterally and the menisci were also intact. Patellar compression was negative and patellar mobility was fine. It was the examiner's assessment that the veteran had an unknown cause of bilateral knee pain. At a July 2004, visit, the veteran indicated that her knees were popping a lot more. She felt more pain at the superior and lateral knee. Ice made the pain feel better. The pain was not constant. The veteran rated the pain in her right knee as 1-2 out of 10. At the time of an August 2004 Persian Gulf War registry examination, the veteran reported having pain in the patella area of the knees, which was described as dull with occasional sharp jabs. This occurred daily with some radiation to the thigh. The pain was 0/10 with awakening and 6/10 by the afternoon. The pain was directly related to the degree of weight-bearing activity. The pain was greater in the left knee than the right. There was no stiffness but the knees would swell with weightbearing. There was no warmth or redness and the veteran used ice for the swelling. The knees would become stiff when sitting through a movie. There was no pain with kneeling, and the veteran wore no braces. Examination revealed no joint swelling or limitation of motion. The veteran had a strong steady gait and used no assistive devices. She was able to walk on her toes and heels and could squat and duck walk. Knee pain was reported but there was no grimace. The veteran had mild crepitus of both knees. Valgus/varus, drawer, and McMurray's were all negative. The veteran complained of pain only with palpation around the patella but no with direct pressure to the patella. A diagnosis of knee pain as likely as not related to chronic strain while carrying extra equipment while deployed was rendered. In August 2004, the veteran was afforded a VA examination. At the time of the examination, the veteran denied having any problems with her musculoskeletal system. While deployed, she experienced pain in both knees. She described her knee pain as a dull ache with occasional sharp pain. The pain occurred daily and varied in degree. She had no pain in the morning when awaking. The pain normally began in the afternoon and she rated it as a 6 on a scale of 0 to 10. At bedtime, the pain was 0 as a result of less weight bearing. She noted taking Endolac in the morning and evening, which she felt helped to control the pain. She believed the pain was directly related to the degree of weight-bearing activity. The veteran noted having increased pain after shopping at the mall for 8 hours. She also reported having swelling which occurred with weight-bearing of greater than 20 to 30 minutes or when walking 3/4 of a mile. There was no warmth or redness associated with this. The veteran noted stiffness with sitting for a long period (about the length of a movie) but denied early morning stiffness. There was no increased pain with being seated for two hours. There was peculiar pain with kneeling. The veteran did not have an assistive device and there were no braces for the knees. She noted having left greater than right knee pain. The veteran was attending physical therapy weekly for strengthening exercises and had a home exercise program she performed two times per week. She was unable to run because of increased knee pain and felt an associated weakness with the increased knee pain. She stated that she could walk 30 minutes without pain. X-rays performed on both knees on June 30, 2004, revealed no significant degenerative changes. There were no fractures or lytic or blastic lesions or any bony abnormalities. There was normal mineralization without joint effusion and there was no soft tissue abnormality. The weight-bearing views were unremarkable. The veteran was independent with her activities of daily living. She drove to the examination. She avoided increased activity as she feared pain and stated that her therapist had told her not to do anything else. Physical examination revealed that the veteran's gait was strong and steady without the use of assistive devices. She wore no braces. Posture was erect. The veteran was able to walk on her heels and toes. She was also able to squat and do a few steps of duck walk. Although the veteran complained of knee pain, there was no facial grimace and no hesitation in assuming the squatting position. On passive motion, very minimal crepitus was appreciated for each knee. Extension was to zero degrees and flexion was to 130 degrees without complaint of pain or grimace. Varus and valgus stress, direct pressure to the patella, and McMurray's were all negative. The veteran only complained of pain without grimace with pressure to the periphery of the patella, bilaterally. There was no warmth, redness, or deformity. There was also no swelling or effusion of either knee. Strength of both lower extremities against resistance was 5/5. A diagnosis of bilateral knee pain as likely as not related to chronic strain while on active duty when required to carry an additional 40 pounds of equipment was rendered. In her August 2004 notice of disagreement, the veteran stated that she could not run to the full extent that she used to and she could not sit for long periods of time or her knees would lock up and cause pain. She further reported that if she walked for long periods of time her knees would swell up and she would have pain. Additional VA outpatient treatment records reveal that at the time of a September 2004 visit, the veteran reported having difficulties squatting and going up stairs. She felt a weakness, but denied that the knees buckled. The veteran wore her braces when walking for longer periods of time. At a May 2005 visit, the veteran reported that she continued to experience bilateral knee pain. She had pain all the time, which increased with activity. She denied that her knees gave out or caught but stated that she felt they were not stable. Examination of the lower extremities revealed no edema and no tenderness to palpation. Drawer and Lachman testing were negative. A diagnosis of knee pain was rendered. In her December 2005 substantive appeal, the veteran reported that she had been recommended to be "chaptered out" of the reserves as a result of being unable to perform her duties as a military member. She noted that she had ben diagnosed as having patellofemoral syndrome and had been given braces at physical therapy to help with the stability of the knees. The veteran forwarded a copy of the medical board evaluation performed in August 2005. The medical board noted that an orthopedic examination had revealed full range of active motion of both knees. There was no evidence of instability of either knee. Crepitus was noted to be present throughout range of motion. Inflammation and effusion were not present. There was positive bilateral patellofemoral tenderness, with otherwise mild diffuse poorly localized tenderness. Physical examination was noted to be otherwise unremarkable. X-rays of both knees were normal. A diagnosis of bilateral patellofemoral syndrome was rendered. The veteran was found to be unable to fulfill her duties as a soldier as she was unable to pass any aerobic event, unable to march, unable to carry required equipment and participate in military activities, and was not deployable. She was noted to have cooperated fully with all aspects of treatment but remained significantly impaired. The veteran was afforded an additional VA examination in February 2006. The examiner noted that the pain was located at the medial and lateral part of the knee as well as behind the knee cap. It was a dull aching pain with occasional sharp pain at the medial and lateral side of the knee. Right and left were equal. Going up stairs, sitting Indian style, and sitting for more than 30 minutes, aggravated the pain to an 8 or 9 out of 10. Icing improved the pain to 2 to 4 out of 10. If she sat and ate for more than an hour, the veteran started to have knee pain. Otherwise, she had no problems with her activities of daily living. Walking was sometimes painful after 30 minutes. Stairs were painful, especially going up, and were limited to two flights. The stairs took time and the knees would lock. The veteran used a handrail all the time. She had no problems with vacuuming or dish washing. Kneeling when cleaning caused pain. Laundry was sometimes painful if walking in the yard or up stairs. The veteran did not cut the grass or shovel the snow. Sitting tolerance was limited to thirty minutes due to knee pain. Walking tolerance was 20 to 30 minutes due to knee pain. The veteran was able to drive for thirty minutes before experiencing knee pain. Physical examination revealed a completely normal gait. Tandem gait was normal and toe gait was completely normal. Heel gait caused bilateral knee pain. Trendelenburg was negative, bilaterally. On standing, the knee was fully extended. Knee valgus was 0 degrees, bilaterally. There was no heat or swelling in the knee. There was no crepitus during motion. There was also no painful arc during motion. Knee range of motion was from 0 to 135 degrees, bilaterally. There was no hyperextension. Muscle strength was 5/5, bilaterally. Examination of the patellofemoral joint revealed no effusion and no capsular thickening. The facet joint had tenderness medially and laterally, bilaterally. Examination of the tibiofemoral joint revealed no lateral instability and no anterior/posterior drawer, bilaterally. There was slight tenderness at the medial joint space, bilaterally. There was no tenderness at the lateral joint space. Lachman and McMurray testing were negative. The popliteal had slight tenderness, bilaterally. There was no swelling. The examiner noted that X-rays taken in June 2004, May 2005, and August 2005 had revealed the knees to be within normal limits. The examiner indicated that the examination confirmed the diagnosis of patellofemoral joint syndrome with no degenerative joint disease. The examiner stated that based upon the examination and the previous X-rays; there was no evidence of degenerative joint disease. Analysis The veteran has been shown to have extension to no less than 0 degrees and flexion to no less than 130 degrees, with 135 degrees of flexion being reported at the time of the most recent VA examination. Examiners have found no additional limitation due to pain, weakness, fatigability or flare ups. 38 C.F.R. §§ 4.40, 4.45. The veteran has reported flare-ups, but these have not been clinically shown, and there have been no reports of additional limitation of motion during these flare-ups. She has also reported significant symptomatology. However, repeated examinations have not shown limitation of motion that would warrant a higher evaluation. Because there is no limitation of extension, a separate evaluation is not warranted on that basis. The veteran has consistently been shown to have some non-compensable limitation of flexion. The current 10 percent rating compensates her for that disability. As to DC 5257, the veteran has reported having instability and locking of her knees on several occasions. She has also reported using a brace on both knees when walking long distances. However, at the time of her August 2004 VA general medical examination, varus and valgus stress, direct pressure to the patella, and McMurray testing were all negative. Moreover, at the time of the August 2004 Gulf War registry examination, valgus/varus, drawer, and McMurray tests were all negative. Furthermore, at the August 2005 medical board evaluation examination, there was no evidence of instability of either knee. Finally, at the time of the February 2006 VA examination, examination of the tibiofemoral joint revealed no lateral instability and no anterior/posterior drawer, bilaterally, and Lachman and McMurray testing were negative. The objective medical examinations have been unanimous in finding no instability or subluxation. The Board is giving more probative value to the objective medical findings made by the medical professionals at the time of their evaluations. Thus, a compensable disability evaluation would not be warranted under DC 5257 for either knee at any time. Therefore, the preponderance of the evidence is against higher schedular evaluations for left or right knee patellofemoral syndrome at any time since the effective date of service connection. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Extraschedular Consideration The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). The service-connected knee disorders have resulted in no periods of hospitalization. There is no evidence that the left or right knee disorders markedly interfere with employment. The veteran is attending college. In the absence of such exceptional factors, the Board finds that referral for consideration of an extraschedular rating is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An evaluation in excess of 10 percent for left knee patellofemoral syndrome (also shown as left knee strain) at any time is denied. An evaluation in excess of 10 percent for right knee patellofemoral syndrome (also shown as right knee strain) at any time is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs