Citation Nr: 1019397 Decision Date: 05/26/10 Archive Date: 06/09/10 DOCKET NO. 04-12 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for patellofemoral syndrome with degenerative joint disease of the left knee, currently rated as 10 percent disabling 2. Entitlement to an increased rating for patellofemoral syndrome with degenerative joint disease of the right knee, currently rated as 10 percent disabling 3. Entitlement to an increased rating for pes planus with plantar fasciitis and hallux valgus of the left foot, currently rated as 10 percent disabling. 4. Entitlement to an increased rating for pes planus with plantar fasciitis and hallux valgus of the right foot, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to March 1992. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a June 2003 rating decision by the Department of Veterans Affairs (hereinafter VA) Regional Office in Houston, Texas, (hereinafter RO). In May 2009, a hearing was held before the Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). FINDINGS OF FACT 1. The medical evidence does not demonstrate recurrent subluxation or instability of the left knee or that flexion is limited to 30 degrees or extension to 15 degrees. 2. The medical evidence does not demonstrate recurrent subluxation or instability of the right knee or that flexion is limited to 30 degrees or extension to 15 degrees. 3. No more than moderate disability due to pes planus and hallux valgus of the either foot is shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for patellofemoral syndrome with degenerative joint disease of the left knee are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5024, 5257, 5260, 5261 (2009). 2. The criteria for a rating in excess of 10 percent for patellofemoral syndrome with degenerative joint disease of the right knee are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, DCs 5024, 5257, 5260, 5261 (2009). 3. The criteria for a rating in excess of 10 percent for pes planus with plantar fasciitis and hallux valgus of the left foot are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §, 4.71a, DCs 5020, 5276, 5283, 5284 (2009). 4. The criteria for a rating in excess of 10 percent for pes planus with plantar fasciitis and hallux valgus of the right foot are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §, 4.71a, DCs 5020, 5276, 5283, 5284 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The duty to notify was fulfilled in the instant case by letter dated in July 2008 that informed the appellant of the information and evidence necessary to prevail in his claims. As for the duty to assist, some service treatment reports have been obtained, and the record reflects voluminous VA outpatient treatment reports contained in seven claims files. The Veteran has also been afforded VA examinations, most recently in January 2009, that contain sufficient clinical evidence to determine the proper rating to be assigned for the service connected disabilities. Finally, the Veteran's representative stated in March 2009 that there was no other evidence to submit in connection with the appeal. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. II. Legal Criteria/Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, 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 DC 5003. A 20 percent rating requires x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Synovitis and tenosynovitis are rated as for arthritis. DCs 5020, 5024, respectively. Under Diagnostic Code 5260, a 10 percent rating is warranted for knee flexion limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 20 percent rating under Diagnostic Code 5260 requires flexion to be limited to 30 degrees, and a 30 percent evaluation is warranted when flexion is limited to 15 degrees. Id. A 10 percent rating is warranted for limitation of extension to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 20 percent rating requires extension to be limited to 15 degrees, and a 30 percent evaluation is warranted when extension is limited to 20 degrees. Id. The normal range of motion of the knee is from 140 degrees flexion to 0 degrees extension. 38 C.F.R. § 4.71, Plate II (2008). In the event of a disability manifesting both limitation of flexion and limitation of extension, VA is to provide two separate ratings under Diagnostic Codes 5260 and 5261. See VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2004). Slight recurrent subluxation or lateral instability of a knee warrants a 10 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. A 20 percent rating requires moderate recurrent subluxation or lateral instability, and a 30 percent evaluation is warranted for severe recurrent subluxation or lateral instability. Id. The VA General Counsel has issued a precedent opinion holding that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5010-5003 and 5257, but cautions that any such separate rating must be based upon additional disabling symptomatology. VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997). A rating in excess of 10 percent for flatfoot under DC 5276 requires severe disability with such manifestations as objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use; characteristic callosities. DC 5283 provides for a rating in excess of 10 percent for moderately severe disability due to malunion or nonunion of the tarsal or metatarsal bones. A rating in excess of 10 percent for foot injuries under DC 5284 requires moderately severe disability. Summarizing the pertinent facts with the above criteria in mind, service connection for bilateral pes planus was granted at a disability rating of 10 percent under DC 5276 by a June 2001 rating decision. This rating decision also granted service connection for patellofemoral syndrome of the left knee and right knee, and assigned separate 10 percent ratings for each knee by analogy to DC 5024. Evidence of record at that time included reports from a January 2001 VA examination that showed the Veteran describing pain in the knees and feet. Upon examination, the Veteran walked with a normal gait. There was no evidence of instability in either knee but there was moderate crepitation in each knee. Motion in the left knee was slow and active with no evidence of effusion. Flexion was limited to 110 degrees in the right knee. The examination of the feet revealed no abnormal callus formation. There was no internal rotation of the toe and there was a normal weight bearing line. Moderate pes planus was shown which reversed when the Veteran moved up on this toes. There was tenderness along the posterior aspect of the heel and along the course of the posterior tibial tendon. The impression following the examination was mild patellofemoral syndrome of the left knee, moderate patellar femoral syndrome of the right knee and bilateral flexible pes planus by history with bilateral mild plantar fasciitis. Thereafter, the Veteran was afforded a VA examination in April 2003 that showed the Veteran reporting that he took anti-inflammatory medication and that he was using his cane more. He reported that he was missing "more and more" work due to his knees, and that the pain in his knees was increasing. The Veteran reported having minimal problems with his feet since he started paying more attention to the kind of footwear that he uses. Upon examination, the Veteran walked with an antalgic gait primarily on the left. Motion in the knees was full with pain beyond 100 degrees of flexion bilaterally. There was also pain with terminal extension. There was no effusion but there was tenderness to palpation around the patellofemoral margins bilaterally. There was no evidence of knee instability. The examination of the feet was said to be unchanged. X-rays were interpreted as showing mild degenerative changes in each knee. Bilateral foot x- rays showed mild hallux deformity, and the diagnoses following the examination were patellofemoral syndrome of each knee, medial joint line pain in the left knee consistent with arthritis, medial joint line pain consistent in the right knee consistent with a medial meniscal tear and bilateral flexible pes planus with mild plantar fasciitis. Following the April 2003 VA examination, a June 2003 rating decision assigned separate 10 percent ratings for each foot under DC 5020, with the service connected disability in each foot listed as "pes planus with plantar fasciitis and hallux valgus." This rating decision also added degenerative joint disease to the service connected disability in each knee, but continued the 10 percent rating for each knee by analogy to DC 5024. These ratings of the feet and knees have been continued until the present time. In June 2006, the Veteran was afforded a VA examination that indicated he suffered from quadriplegia and needed transportation to attend the examination. He reported that his service connected knee and foot conditions had increased in severity. It was noted that the Veteran was in a motor vehicle accident in December 2004 that resulted in a fracture of C5, dislocation of C4-C5 and stenosis of C5. He was said to suffer from quadriplegia from the waist down and to be bound to a wheelchair as a result of the accident. The Veteran reported increased pain in the knees since the automobile accident, but did not report any flare-ups, locking, or instability involving the knees. The physical examination of the left knee in June 2006 showed a large arthritic appearing joint with flexion to 150 degrees and extension to -10 degrees. Repetitive flexion and extension of the knee caused pain and stiffness and the Veteran described a grinding sensation. There was no tenderness or swelling about the patella or medial or lateral aspect of the joint and no indication of ligamentous laxity. The drawer sign was negative, indicative of intact ligaments. The right knee was also large and arthritic looking, with flexion to 104 degrees and extension to -10 degrees. Repetitive flexion and extension of the knee produced pain and stiffness and showed the Veteran reporting grinding in his knee. There was no tenderness or swelling around the medial, lateral or posterior aspect of the joint and no indication of laxity of the lateral and medial collateral ligaments. Again, the drawer sign was negative which was indicative of intact ligaments in the right knee. X-rays showed bilateral osteopenia. Following the examination, the physician opined that the current knee condition was due to service-connected disability and "separate" from the quadriplegia resulting from the automobile accident, and that the osteoarthritis in the knees had gotten "much worse" since his last VA compensation and pension examination. The examiner noted also that the knee disability made physical therapy the Veteran was attempting because of the injuries from his automobile accident more difficult. The most recent VA compensation examination was accomplished in January 2009, at which time the Veteran reported that orthotics had provided a "fair degree of relief" of foot pain. He described current pain about the posterior medial aspect of the hindfoot and throughout the heel. The Veteran also described pain in the right ankle and an occasional blister on the bottom of the feet with pain. No swelling, heat, redness, stiffness, fatigability, weakness or lack of endurance associated with the feet were described, but the Veteran indicated there was pain in the heel area both upon standing and at rest. The physical examination of the feet showed no evidence of painful motion, swelling, instability, weakness or abnormal weight bearing. There was tenderness of the hallux and heel area and medial arch of the left foot and the medial arch and heel of the right foot. There was mild angulation at the first metatarsophalangeal joint of each foot with stiffness. There was no evidence of malunion or nonunion of the tarsal or metatarsal bones and no other foot deformities or atrophy. X-rays of the feet showed some demineralization of the visualized bony structures with no evidence of recent fracture or dislocations. The diagnosis pertinent to the feet was bilateral pes planus with plantar fasciitis and hallux valgus, and the examiner reported no effects of this condition on daily activities. With regard to the knees, the Veteran told the examiner at the January 2009 VA examination that he currently experiences grinding and pain in each knee that worsens with physical therapy. The condition in the knee was said to have become progressively worse since its onset. Upon physical examination of each knee, crepitus was noted but there was no grinding or instability and no abnormalities of the patella, meniscus or tendons. Motion in the left knee was to 120 degrees of flexion and full extension, and motion in the right knee was to 130 degrees of flexion and full extension. There was pain with motion in each knee but no additional limitation of functioning or pain noted with repetitive motion. X-rays of the knees were unremarkable with the exception of a surgical wire at the upper end of the fibula in the left knee from a previous operation. The diagnosis was bilateral patellofemoral syndrome, and the examiner stated that the Veteran was unable to engage in sports, that there was mild impairment in the ability to exercise but that there was no impairment of the ability to perform chores or shopping, recreation, travel, feeding, bathing, dressing, toileting or grooming. The examiner emphasized that the Veteran's spinal cord injury prevented driving, sports and other activities of daily living. First applying the relevant criteria to the service connected bilateral knee disability, the Board has carefully considered the Veteran's contentions, to include in sworn testimony to the undersigned in May 2009, that the disability in each knee warrants a rating in excess of 10 percent. However, the clinical evidence shows that motion of in either knee does not equated with the loss of flexion or extension to warrant a rating in excess of 10 percent under DCs 5260 or 5261. In this regard, a rating in excess of 10 percent for loss of flexion under DC 5260 would require flexion to be limited to 30 degrees; in the instant case, flexion was to, at worst, 110 degrees in January 2001, and was measured at 120 degrees and 130 degrees in the left and right knees, respectively, at the most recent VA examination in January 2009. (Indeed, the record does not reflect the presence of compensable limitation of flexion under DC 5260.) A rating in excess of 10 percent for loss of extension under DC 5261 would require extension to be limited to 15 degrees. Thus, as extension was full in both knees at the most recent examination and was shown to, at worst, 10 degrees in June 2006, increased compensation would not be warranted under DC 5261. Additionally, as subluxation or instability was not demonstrated by the clinical findings on the VA examinations reported above, entitlement to an increased rating for subluxation or lateral instability would not be warranted under Diagnostic Code 5257. See VAOPGCPREC 23-97. In addition, as there was no additional limitation of function or pain noted with repetitive motion at the most recent VA examination in January 2009 and no "flareups" of knee pain described, increased compensation is not warranted under the provisions of 38 C.F.R. § 4.40 or 4.45 or the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, a schedular rating in excess of 10 percent for the Veteran's service-connected patellofemoral syndrome in either knee is not warranted. In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." See Barringer v. Peak, 22 Vet App 242 (2008) The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Floyd v. Brown, 9 Vet. App. 88, 94 (1996). In this case, however, the schedular evaluations are not inadequate. As indicated, ratings in excess of those currently assigned are provided for certain manifestations of the Veteran's service-connected residuals, but those manifestations are not present in this case. Moreover, the Board finds no evidence of an exceptional disability picture, as the service-connected residuals have not shown functional limitation beyond that contemplated by the 10 percent ratings currently assigned. Accordingly, referral of this decision for extraschedular consideration is not indicated. The Veteran has asserted, to include in sworn testimony in May 2009, a much more debilitating condition due to his service connected knee disabilities than was demonstrated by the evidence cited above, and the Board fully respects the Veteran's sincere assertions in this case. However, it finds the probative weight of this positive evidence to be overcome by the more objective negative evidence cited above. See Francisco v. Brown, 7 Vet. App. at 55 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992); cf. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, as the probative weight of the negative evidence exceeds that of the positive, the claims for increased ratings for patellofemoral syndrome in each knee must be denied. Gilbert, 1 Vet. App. at 49. With regard to the feet, a rating in excess of 10 percent may be assigned under DC 5276 if there is severe disability with such manifestations as objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use or characteristic callosities. These findings are simply not shown on the reports from the VA examinations described above. In addition, as the examiner specifically noted in January 2009 that there was no evidence of malunion or nonunion of the tarsal or metatarsal bones, increased compensation under DC 5283 cannot be assigned. Finally, the Board finds that "moderately severe" disability involving the service- connected foot disabilities so as to warrant increased compensation under DC 5284 is not demonstrated. A support for this determination, no swelling, heat, redness, stiffness, fatigability, weakness or lack of endurance associated with the feet were described at the January 2009 VA examination, and the examiner at that time reported that the service connected foot disability did not affect the Veteran's daily activities. The examination findings also do not demonstrate objectively quantifiable additional impairment in the feet due to pain or repeated use for which compensation would be warranted under 38 C.F.R. §§ 4.40, 4.45 or DeLuca, and there is nothing in the reports from these examinations pertaining to the feet that would indicate that referral for extraschedular consideration is indicated. Again, the Board has considered the contentions, to include in sworn testimony, alleging a more severe level of foot disability than was demonstrated by the VA clinical evidence described above, but finds this clinical evidence to be more probative than the Veteran's assertions. See Francisco, Espiritu, Jandreau, supra. Thus, as the probative weight of the negative evidence exceeds that of the positive, the claims for increased ratings for pes planus with plantar fasciitis and hallux valgus in each foot must be denied. Gilbert, 1 Vet. App. at 49. ORDER Entitlement to a rating in excess of 10 percent for patellofemoral syndrome with degenerative joint disease of the left knee is denied. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome with degenerative joint disease of the right knee is denied. Entitlement to a rating in excess of 10 percent for pes planus with plantar fasciitis and hallux valgus of the left foot is denied. (CONTINUED ON NEXT PAGE) Entitlement to a rating in excess of 10 percent for pes planus with plantar fasciitis and hallux valgus of the right foot is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs