Citation Nr: 1007889 Decision Date: 03/03/10 Archive Date: 03/11/10 DOCKET NO. 07-24 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a higher evaluation than 10 percent for chronic right knee strain. 2. Entitlement to a higher evaluation than 10 percent for chronic left knee strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1987 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania (RO). In pertinent part of that rating decision, the RO granted service connection for bilateral chronic knee strain, and assigned each knee a noncompensable disability rating, effective from February 1, 2006. The Veteran appealed the assigned ratings. During the course of this appeal, in a November 2008 rating decision, the RO increased the evaluations for both knees from noncompensable to 10 percent disabling, effective from February 1, 2006. The increased rating claims remains in controversy as the ratings remain less than the maximum available schedular benefit awardable. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2009, the Veteran was scheduled for a Travel Board hearing at the RO. The Veteran failed to appear for the hearing. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702 (d) (2009). Accordingly, this Veteran's request for a hearing is considered withdrawn. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's right knee disability has been manifested by arthritis with no more than painful motion limited to 50 degrees on flexion. The Veteran does not have compensable limitation of motion on extension, and there is no evidence of subluxation or instability, nonunion or malunion of the tibia and fibula, or genu recurvatum. 2. Throughout the period on appeal, the Veteran's left knee disability has been manifested by arthritis with no more than painful motion limited to 120 degrees on flexion. The Veteran does not have compensable limitation of motion on extension, and there is no evidence of subluxation or instability, nonunion or malunion of the tibia and fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an evaluation higher than 10 percent have not been met for chronic right knee strain. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2009). 2. The criteria for an evaluation higher than 10 percent have not been met for chronic left knee strain. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for the Veteran's bilateral knee disability. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court of Appeals for Veterans Claims (Court) have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007). No additional discussion of the duty to notify is therefore required. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate her claims. 38 U.S.C.A. § 5103A. VA obtained the Veteran's service medical records, VA treatment records and other treatment records identified by the Veteran. Additionally, VA provided the Veteran with compensation examinations in October 2005 and May 2008, which addresses the severity of the Veteran's bilateral knee disability. It is noted that the Veteran was also provided with a VA examination in April 2008. The April 2008 examination is considered inadequate for rating purposes, because there were no findings pertaining to any pain on range of motion. Significantly, the appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Increased Rating The Veteran claims that her right knee and left knee disabilities are manifested by symptomatology more severe than represented by the current 10 percent disability ratings. Disability evaluations are determined by the application of the facts presented to a schedule of ratings that is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When evaluating the severity of a disability, VA will consider the entire history of the disability including records of social impairment. See 38 C.F.R. § 4.126(a); Peyton v. Derwinski, 1 Vet. App. 282 (1991). In cases involving the assignment of an initial rating following the award of service connection, VA must address all evidence that was of record from the date of the filing of the claim on which service connection was granted (or from other applicable effective date). Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. See id.; Hart v. Mansfield, 21 Vet. App. 505 (2007). This practice is known as "staged" ratings. It is not expected that all cases will show all the findings specified; however, in all instances it is expected that there will be sufficient findings as to identify the disease and the disability there from, and to coordinate the rating with the identified impairment of function. 38 C.F.R. § 4.21. Where there is a question as to which of two rating 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran 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, 55 (1990). Any reasonable doubt will be resolved in favor of granting the veteran's claim. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102 (2009). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Painful motion with the joint or particular pathology, which produces a disability, warrants the minimum compensation. DeLuca v. Brown, 8 Vet. App. 202 (1995). Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). The Veteran's service-connected right and left knee disabilities are each currently evaluated with a 10 percent rating for arthritis with loss of flexion (under Diagnostic Code 5260). 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. When 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, X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, warrants a 10 percent evaluation; with the addition of occasional incapacitating exacerbations, a 20 percent evaluation is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (degenerative arthritis). Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Limitation of a leg (knee) flexion is rated 0 percent when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg (knee) is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent 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. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Separate ratings may be awarded for limitation of flexion and limitation of extension of the same knee joint. VAOPGCPREC 09-04, 69 Fed. Reg. 59990 (2004). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA Office of General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 (degenerative arthritis) does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). See also VAOPGCPREC 9-04 (which finds that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint). In the instant case, the Veteran argues that higher ratings are warranted for her right knee and left knee disabilities. The Veteran's disabilities are currently characterized as chronic left and right knee strains with arthritis with loss of flexion. Based on the medical evidence contained in the record, the Board finds that the Veteran's right knee and left knee disabilities are appropriately rated under the criteria applicable to arthritis and loss of motion. During the period under appeal, the Veteran underwent three VA examinations to identify the nature and severity of her knee disabilities. As noted above, only two of the reports from the VA examinations are adequate for rating purposes, and one report (that of the April 2008 examination) was not. The Veteran first underwent a VA examination in October 2005. In the examination report, the examiner noted that the Veteran complained of pain with flare-ups. The examiner noted that the Veteran did not require the use of an assistive device to ambulate. There was evidence of crepitus in both knees, but there was no evidence of subluxation, instability, locking pain, or joint effusion. The Veteran had range of motion in both knees from zero to 120 degrees, with additional limitation after repetitive use and during flare-ups. The examiner noted that there was no x-ray evidence of arthritis in either knee. In May 2008, the Veteran was afforded another VA examination. In that examination report, the examiner noted that the Veteran complained of severe constant pain in her right knee and mild to moderate pain in her left knee. The Veteran reported that she has difficulty standing for more than two hours and walking for more than 20 minutes. The examiner recorded that the Veteran had a range of motion in her right knee from zero to 50 degrees with pain and a range of motion in her left knee from zero to 110 degrees with pain. There was no evidence of instability, subluxation, swelling or crepitus. The examiner reported that there was x-ray evidence of arthritis in both knees. At no point during the period under appeal has the severity of the Veteran's right knee disability or her left knee disability been shown to be more severe than that meeting the objective criteria for a 10 percent rating under the provisions for rating arthritis with loss of motion. The medical evidence of record shows that the Veteran's bilateral knee disability included arthritis manifested by pain and limitation on range of motion. As discussed above, this may be rated under Diagnostic Codes applicable for rating range of motion loss (when range of motion loss is so severe as to be compensable) or it may be rated as 10 percent disabling under Diagnostic Code 5003 (when range of motion loss in that joint is not so severe as to be compensable under applicable codes for rating range of motion loss). Here, in regard to the right knee, the most recent medical evidence shows the Veteran has a range of motion from zero to 50 degrees in her right knee. This symptomatology does not support a compensable rating for right knee disability due to the limitation of extension under the applicable codes for rating loss of range of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. It does, however, support a compensable rating for the limitation of flexion in the right knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Although the right limitation of flexion does not strictly meet the criteria for a compensable rating under Diagnostic Code 5260, a limitation to 50 degrees of flexion is approximately closer to the compensable 45 degrees than the noncompensable 60 degrees of limitation. See Id. Further, when considering the factors discussed in DeLuca, however, the Board finds that the Veteran's right knee disability due to arthritis is severe enough as to be compensable under a 10 percent disability rating, and no higher, for limitation of flexion. See 38 C.F.R. § 4.7; see also 38 C.F.R. §§ 4.40, 4.45, 4.59 as applied under DeLuca, 8 Vet. App. at 204-08; 38 C.F.R. § 4.71a, Diagnostic Codes 5260. At no point, does the medical evidence from this period show that the loss of flexion in the right knee that is greater than 50 degrees as to warrant a higher rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. In regard to the Veteran's left knee disability due to the limitation of motion, it does not meet the criteria for a compensable rating under one of the applicable codes for rating loss of range of motion (range of motion from zero to 110 degrees). See 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. When arthritis does not cause loss in range of motion so severe as to warrant a compensable rating under Diagnostic Codes for evaluating range of motion loss, the arthritis in that joint is afforded a 10 percent rating under Diagnostic Code 5003. As such, the left knee disability due to pain on motion from arthritis only meets the criteria to be rated as 10 percent disabling under Diagnostic Code 5003 for degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. It is noted that the medical findings contained in the April 2008 VA examination report indicate more severe symptomatology than that shown in the subsequent May 2008 VA examination report. As noted above, however, the April 2008 VA examiner did not provide any findings pertaining to loss of motion to the point at which pain begins, and therefore, range of motion findings in that examination report are inadequate for rating purposes. Further, given the short period between the widely varying findings reported on the April 2008 examination report and those reported on the May 2008 VA examination report, and the strong similarity between the findings from the October 2005 examination and the May 2008 examination, the Board finds that the measurements noted in the April 2008 VA examination only mark a temporary flare- up of the Veteran's symptomatology. The Board has considered whether the Veteran is entitled to a separate rating under any other potentially applicable Diagnostic Code, including 5257 (for rating instability or subluxation), 5258 (for rating cartilage damage), 5262 (for rating impairment of the tibia or fibula), or 5263 (for rating genu recurvatum). The records on file do not contain findings of cartilage damage, impairment of the tibia or fibula, or genu recurvatum. As such, separate ratings under these codes, are not warranted. While it is noted that in an few of the earlier VA treatment records, there was indications of subluxation in both knees, the later VA treatment records, did not show any evidence of subluxation in either knee. See VA treatment records dated January 2007 to May 2008. The Board places greater weight on the more recent objective medical findings that do not show any problems with subluxation. At most, the earlier medical findings of bilateral subluxation only mark a temporary flare-up of the Veteran's symptomatology, and not a permanent worsening upon which another rating is warranted. See Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, no additional or higher ratings for right or left knee disability are warranted under the provisions at Diagnostic Code 5257. Additionally, there is no evidence of dislocated semilunar cartilage (rated under Code 5258), there is no evidence of nonunion or malunion in the right knee (rated under Code 5262), and there is no evidence of genu recurvatum, with objective findings of weakness and insecurity in when bearing weight (rated under Code 5263). With none of these findings, ratings are not possible under these diagnostic codes. The Board has also considered whether an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is warranted. That provision provides that in exceptional circumstances, where the schedular evaluations are found to be inadequate, the Veteran may be awarded a rating higher than that encompassed by the schedular criteria, as demonstrated by evidence showing that the disability at issue causes marked interference with employment, or has in the past or continues to require frequent periods of hospitalization rendering impractical the use of the regular schedular standards. According to 38 C.F.R. § 4.1, "generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability." The evidence does not show that the Veteran's disability required frequent periods of hospitalizations. The Veteran has shown that her bilateral knee disorder has affected her work in case management; however, the Veteran has not been limited in other forms of employment that would not require long periods of standing or walking. Accordingly, the Board concludes that consideration of an extraschedular rating is not warranted for the Veteran's service-connected bilateral knee disability. Finally, the Board notes that the severity of the Veteran's symptomatology has been relatively constant throughout the period of this appeal, therefore, "staged" ratings are not warranted. 38 C.F.R. § 4.71a; Hart, 21 Vet. App. 505. As discussed above, the medical evidence of record does not indicate that the symptomatology associated with disability in either knee has worsened to a level more severe than 10 percent disabling at any point during this period. Should the Veteran's disability picture change in the future, she may be assigned a higher rating. See 38 C.F.R. § 4.1. In sum, the Board finds that the preponderance of the medical evidence is against a finding in favor of awarding increased ratings higher than 10 percent for right knee and left knee disabilities for arthritis with loss of extension. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 and 5260. ORDER Entitlement to a higher evaluation than 10 percent for chronic right knee strain is denied. Entitlement to a higher evaluation than 10 percent for chronic left knee strain is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs