Citation Nr: 1007231 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-31 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for the service-connected left knee disability. 2. Entitlement to an initial disability rating in excess of 10 percent for the service-connected right knee patellofemoral syndrome. ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 1999 to June 1999 and from March 2005 to May 2006. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In that decision, the RO granted service connection with initial 10 percent ratings assigned for a left knee condition and right knee patellofemoral syndrome. The Veteran disagreed with the initial 10 percent disability ratings assigned for each knee. FINDINGS OF FACT 1. Since the effective date of service connection, the service-connected left knee disability has been manifested by no more than slight laxity. 2. Since the effective date of service connection, the service-connected left knee range of motion has been full with 0 degrees of extension to 140 degrees of flexion, but with effusion, crepitation and functional limitation due to pain, particularly with bending, decreased mobility, problems with lifting and carrying, and decreased strength; neither ankylosis nor arthritis of the left knee have ever been objectively demonstrated; all of which results in an overall disability picture that more nearly approximates that of extension limited to, at most, 10 degrees when considering functional loss due to pain and weakness. 3. Neither subluxation nor instability of the right knee has ever been demonstrated. 4. Since the effective date of service connection, the service-connected right knee patellofemoral syndrome has been manifested by effusion, crepitation and functional limitation due to pain, particularly with bending, decreased mobility, problems with lifting and carrying, and decreased strength; range of motion of the right knee has been full with 0 degrees of extension to 140 degrees of flexion and there have been no findings of ankylosis or arthritis, all of which results in an overall disability picture that more nearly approximates that of extension limited to, at most, 10 degrees when considering functional loss due to pain and weakness. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial disability rating in excess of 10 percent rating for the service- connected left knee disability on the basis of instability (laxity) have been met since the effective date of service connection for a left knee disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257 (2009). 2. The criteria for the assignment of an initial 10 percent rating, but no higher, for the service-connected left knee disability on the basis of painful motion have been met since the effective date of service connection for a left knee disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2009). 3. The criteria for a compensable rating for the service- connected right knee patellofemoral syndrome on the basis of subluxation and/or instability have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257 (2009). 4. The criteria for the assignment of an initial rating in excess of 10 percent for the service-connected right knee patellofemoral syndrome on the basis of painful motion have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in July 2007. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim of service connection and the relative duties of VA and the claimant to obtain evidence. With regard to the underlying service connection claim, the notification also advised the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to the increased rating claims, here, the Veteran is challenging the initial ratings assigned following the grants of service connection. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the notices provided to the Veteran over the course of the appeal provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate his claims. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the Veteran the opportunity to testify before either the Board or the RO. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Increased Ratings The Veteran seeks higher ratings for the service-connected left knee disability and right knee patellofemoral syndrome, both rated as 10 percent disabling since the effective date of service connection. The service-connected left knee disability rating of 10 percent is assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257, and the service-connected right knee patellofemoral rating of 10 percent is assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5299-5261. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations should 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. 38 C.F.R. § 4.40 provides that 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. It is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings Hart v. Mansfield, 21 Vet. App. 505 (2007). Moreover, since the Veteran appealed the initial ratings assigned for the right and left knee disabilities, the entire body of evidence is for equal consideration. Fenderson v. West, 12 Vet. App. 119 (1999). Under Diagnostic Code 5257, recurrent subluxation or lateral instability warrants a 10 percent disability evaluation when slight, a 20 percent disability rating requires moderate impairment of the knee due to recurrent subluxation or lateral instability, while a 30 percent disability rating requires severe impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Codes 5260 and 5261 govern the rating criteria with regard to limitation of motion of the knee. Under Diagnostic Code 5260, limitation of flexion of the knee warrants a zero percent rating when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and a 30 percent rating when limited to 15 degrees. Under Diagnostic Code 5261, limitation of extension of the leg warrants a zero percent rating when extension is limited to 5 degrees; a 10 percent rating when extension is limited to 10 degrees; a 20 percent rating when limited to 15 degrees; 30 percent when limited to 20 degrees; 40 percent when limited to 30 degrees; and 50 percent when limited to 45 degrees. The regulations define normal range of motion for the leg as zero degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate I. In a precedent opinion, the VA General Counsel held that separate ratings may be assigned for limitation of flexion and limitation of extension, under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). At a VA joints examination in January 2007 only the Veteran's left knee was examined. At that time, range of motion of the left knee was from 0-140 degrees. Stability tests for the medial and lateral collateral ligaments, and the anterior and posterior cruciate ligaments were negative. McMurray's test was also negative. Pain was elicited at the inferior pole of the left knee with repetitive motion, but without any evidence of weakness, fatigue or further functional loss. The diagnosis was left knee patellofemoral dysfunction. VA examinations of the Veteran's left and right knees were conducted in August 2007 and July 2009. At both examinations, the Veteran reported pain in both knees, with additional symptoms on the left, including swelling. X-ray studies in conjunction with the examination reports confirmed no arthritis or soft tissue injury of either knee. Crepitance and effusion were noted in August 2007. Fatigability and weakness were also noted. At examinations in August 2007 and July 2009, range of motion of both knees was from 0 to 140 degrees. In addition to full range of motion of both knees, the August 2007 and July 2009 examination reports noted subpatellar tenderness, but no instability, no dislocation, no ankylosis and no subluxation. However, the August 2007 examination report noted "significant effects" with respect to the Veteran's occupational activities because of pain and difficulty sitting for a prolonged period of time. The Veteran's "occupation" at that time was "student" and he found it difficult to sit for prolonged periods of time in the classroom. Objective findings include computerized tomography (CT) scans of the knees from August 2007 and March 2008, and an x-ray study of the knees from July 2009. The CT scans were normal and X-ray evidence from July 2009 notes no evidence of fracture or dislocation of either knee with well-preserved joint spaces and unremarkable soft tissues. There was no evidence of joint effusion at that time, and there were no bony lesions or erosions identified. The x-ray impression was no bony abnormality identified (bilaterally). Despite the negative 2007 and 2008 CT scans and x-ray report from July 2009, the VA outpatient treatment records have consistently shown complaints of left knee pain. For example, a February 2008 note indicates that the Veteran sought treatment for left knee pain. He reported at that time that he had been suffering from pain in his left knee since Iraq, and that the knee pain interfered with daily activities such as climbing stairs and walking long distances. Due to knee pain, the Veteran reportedly stopped exercising and had gained weight. In June 2008, the Veteran was evaluated by VA for his left knee pain. The Veteran reported that his left knee pain began after wounds sustained in Iraq, and that he had experienced mild to moderate knee discomfort since that time. He was found to be independent in basic and instrumental activities of daily living. On inspection of the knee, there was no edema, erythema, warmth, or palpable/visible masses, or effusion. There was no asymmetry or deformity. There was tenderness to palpation on bilateral median and lateral collateral ligaments. There was mild discomfort on bilateral pes ancerine and minimal patellofemoral crepitus of the right knee. Range of motion was full. Anterior drawer sign was +1 with firm end point on both knees and slight internal rotation component of the left knee. Posterior drawer was +1 with firm end point. Lachman was -/+ on the left. There was no laxity with varus or valgus stress. McMurray's was negative. The assessment was mild left knee ACL laxity likely the cause of high end functional activity limitations. A physical therapy note from July 2008 noted that the Veteran was referred for physical therapy due to left knee pain and inflammation. In sum, the totality of the evidence in this case shows that the Veteran has pain in both knees, but no limitation of motion of either knee, no arthritis, and no soft tissue injury. Effusion was noted in 2007, but not in 2009. Nevertheless, the Veteran has consistently reported pain in both knees, more so on the left, and functional limitations due to that pain, including inability to sit for prolonged periods, limited ability to lift and carry heavy objects, and additional weakness. The Veteran maintains that his inability to sit for long periods had a significant affect on his ability to maintain his college curriculum. Additionally, with respect to the left knee, a June 2008 VA treatment record supports a finding of mild laxity on the left. There is no evidence whatsoever of any subluxation or instability of the right knee, and notably, the VA outpatient records predominantly refer to the reports of pain in the left knee, without mention of the right knee. The Veteran submitted a May 2008 private treatment record noted an assessment of left patellar tendinitis; left chondromalacia patella, and left medial meniscus tear (clinical). Although a "medial meniscus tear" was noted on this report, there is no objective evidence of record to support that finding. The x-ray report of July 2009, for example, was negative for a soft tissue injury. As such, the May 2008 impression of meniscal tear carries little, if any, probative value, and it is heavily outweighed by the objective evidence of record which indicates that no such tear exists. The left knee has been rated as 10 percent disabling pursuant to Diagnostic Code 5257. To warrant the next higher rating under that code, the medical evidence would have to show moderate instability or subluxation. Because no more than mild left knee ACL laxity has ever been demonstrated, the criteria for the assignment of a rating in excess of 10 percent pursuant to Diagnostic Code 5257 are not met in this case. However, based on the Veteran's functional limitation due to pain, which has been consistently shown on examinations and in the VA treatment records, a separate rating of 10 percent is assignable pursuant to Diagnostic Code 5260 or 5261 (but not both, as there are no actual clinical findings of limited range of motion). Although the Veteran's motion is not actually limited by pain, per se, the medical evidence of record clearly demonstrates that the Veteran has left knee pain that results in functional limitation due to weakness and an inability to sit for prolonged periods, an inability to carry or lift heavy objects, an inability to routinely exercise, and the like. Given evidence of swelling and effusion, for example, and the consistent reports of left knee pain shown in the record, the Board finds that the Veteran is entitled to at least the minimum compensable rating for the joint. Moreover, pain on use is considered a major factor in evaluating disability. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). As such, a 10 percent rating is warranted pursuant to either Diagnostic Code 5260 or 5261 (but not both) for functional limitation due to pain. The next higher, 20 percent rating is not warranted under Diagnostic Code 5261 because extension of the knee is not limited to at least 15 degrees. Similarly, the next higher, 20 percent rating is not warranted under Diagnostic Code 5260 because flexion of the knee is not limited to at least 30 degrees. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Although separate ratings for arthritis and limited motion, for example, are not permitted because both ratings are predicated on limited motion, the Veteran's instability of the left knee is considered a separately ratable condition without overlapping symptomatology to that of pain on motion. The Veteran's functional limitation due to pain on motion of the left knee has been assigned a separate rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260 (or 5261). A 10 percent rating is assigned from the effective date of service connection, as there are no distinct time periods that would warrant the assignment of different ratings. See also VAOPGCPREC 23-97 (1997). Regarding the right knee, a 10 percent rating has already been assigned on the basis of functional limitation due to pain on motion under Diagnostic Code 5261. As is the case with the left knee, there is no basis on which to assign a higher rating for the right knee patellofemoral syndrome based on Diagnostic Codes 5260 or 5261 because there is no limitation of motion, and the functional limitation due to pain and weakness, etc. has already been assigned at least a minimal compensable rating for that joint pursuant to Diagnostic Code 5261. See 38 C.F.R. §§ 4.40, 4.45, 4.59. In contrast to the left knee, the right knee does not experience subluxation or instability according to the medical evidence of record. Thus, a separate compensable rating is not assignable pursuant to the criteria at 38 C.F.R. § 4.71, Diagnostic Code 5257. Finally, there is no code that would afford the Veteran ratings in excess of those currently assigned. A rating pursuant to Diagnostic Code 5259 is not appropriate in this case because there is no evidence of symptomatic status post semilunar cartilage removal of either knee. In addition, a rating under Diagnostic Code 5010, arthritis due to trauma, is not warranted because there is no evidence of left or right knee arthritis substantiated by x-ray findings. Moreover, as the Veteran does not have ankylosis of the knee, a rating under Diagnostic Code 5256 is not appropriate. Additionally, as dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint is not demonstrated with respect to either knee, a rating under Diagnostic Code 5258. Finally, other impairment of the tibia and fibula is not shown such that a rating under Diagnostic Code 5262 would be appropriate. The criteria for the assignment of this 10 percent rating for pain in the right knee and this 10 percent rating for instability of the left knee with a separate rating of 10 percent for pain on motion, but no higher, have been met during the entire appeal period, as there are no distinct time periods where the Veteran's symptoms warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999). With respect to the left knee, the criteria are met for the assignment of an initial 10 percent rating, but no higher, for functional limitation due to pain in the left knee; however, the preponderance of the evidence is against the claim for an increased rating, in excess of 10 percent for the separately rated instability of the left knee; there is no doubt to be resolved; and an increased rating is not warranted. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. Regarding the right knee, the preponderance of the evidence is against the claim for an increased rating, in excess of the 10 percent currently assigned based on functional limitation due to pain; there is no doubt to be resolved and an increased rating is not warranted. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3 III. Extra Schedular Consideration Finally, the potential application of 38 C.F.R. § 3.321(b)(1) has also been considered. See Thun v. Peake, 22 Vet. App. 111 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). However, there has been no showing that the service- connected right or left knee disabilities under consideration here have caused marked interference with employment, have necessitated frequent periods of hospitalization beyond those noted above, or otherwise render impracticable the application of the regular scheduler standards. The regular scheduler standards contemplate the symptomatology shown in this case. In essence, there is no evidence of an exceptional or unusual disability picture in this case which renders impracticable the application of the regular scheduler standards. As such, referral for consideration for an extraschedular evaluation is not warranted here. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial rating in excess of 10 percent for the service- connected left knee disability on the basis of instability is denied. A separate initial rating of 10 percent, but no higher, is granted for the service-connected left knee disability on the basis of functional limitation due to pain and weakness, subject to the laws and regulations governing the payment of monetary benefits. An initial rating in excess of 10 percent for the service- connected right knee patellofemoral syndrome is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs