Citation Nr: 1040586 Decision Date: 10/28/10 Archive Date: 11/04/10 DOCKET NO. 04-12 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a right knee disability. 2. Entitlement to an initial rating in excess of 10 percent for a left knee disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran; Veteran's wife, H. K. ATTORNEY FOR THE BOARD H. Yoo, Associate Counsel INTRODUCTION The Veteran had active service from November 1985 to March 1993 and September 2004 to June 2005 with four months additional active service and additional service in the National Guard. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of December 2002 by the Department of Veterans Affairs (VA) Oakland, California, Regional Office (RO). A hearing before the undersigned Veterans Law Judge was held at the RO in Portland, Oregon, in March 2009. The hearing transcript has been associated with the claims file. In May 2009, the Board remanded this matter for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's right knee disorder is manifested by pain, limitation of flexion of the right knee, at worst, 110 degrees, and without limitation of extension; his right knee disorder is not manifested by ankylosis, recurrent subluxation, objective evidence of instability, dislocated or removed cartilage, or other impairment. 2. The Veteran's left knee disorder is manifested by pain, limitation of flexion of the left knee to, at worst, 105 degrees and without limitation of extension; his left knee disorder is not manifested by ankylosis, recurrent subluxation, objective evidence of instability, dislocated or removed cartilage, or other impairment. CONCLUSION OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee disability were not met at any time during the appellate period. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5014-5260, 5003, 5010, 5024, 5256, 5257, 5258, 5259, 5260, 5261, 5262 (2009). 2. The criteria for a rating in excess of 10 percent for a left knee disability were not met at any time during the appellate period. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5014-5260, 5003, 5010, 5024, 5256, 5257, 5258, 5259, 5260, 5261, 5262 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). The Veteran's claim arises from his disagreement with initial evaluations assigned following the grant of service connection for his knee disabilities. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for this claim. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining in-service treatment and personnel records, and affording him VA medical examinations for his bilateral knee disabilities. Significantly, the Veteran 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 Veteran is required to fulfill VA's duty to assist the Veteran 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). Initial Increased Rating The Veteran claims that his service-connected right and left knee disability are more disabling than currently evaluated. The Veteran is current rated at 10 percent disabling for the right and left knee disabilities in a December 2002 rating decision. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2009). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2009). Separate diagnostic codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings for distinct periods of time, based on the facts are for consideration. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2009). 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 (2009). 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 (2009). 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 (2009). Functional loss is also considered in addition to the criteria set forth. See 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2009); see also DeLuca v. Brown, 8 Vet. App. 202, 204- 06 (1995). In particular, if the disability at issue is of a musculoskeletal nature or origin, then VA may, in addition to applying the regular schedular criteria, consider granting a higher rating for functional impairment caused by pain, weakness, excess fatigability, or incoordination, assuming these factors are not already contemplated by the governing rating criteria. Claimed functional loss must be supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion. See DeLuca v. Brown, supra. For purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). Normal (full) 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. Bursitis is rated on limitation of motion of the affected parts as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5019. Degenerative or traumatic arthritis, established by X-ray findings, is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. 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 affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (degenerative arthritis) and Diagnostic Code 5010 (traumatic arthritis). The general rating schedule for limitation of motion of the knee is 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2009). 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 when limited to 30 degrees; and a 30 percent when limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2009). Limitation of extension of the knee warrants a zero percent rating when extension is limited to 5 degrees; a 10 percent rating when limited to 10 degrees; a 20 percent rating when limited to 15 degrees; a 30 percent rating when limited to 20 degrees; a 40 percent rating when limited to 30 degrees; and a 50 percent rating when limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2009). Separate ratings may be assigned for arthritis with limitation of motion of a knee (Diagnostic Codes 5003-5010) and for instability of a knee (Diagnostic Code 5257). VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997) and VAOPGCPREC 9- 98 (August 14, 1998), published at 63 Fed. Reg. 56,704 (1998). Under Diagnostic Code 5257, a 10 percent rating is warranted for impairment of the knee with slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for impairment of the knee with moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for impairment of the knee with severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5299 represents an unlisted disability requiring rating by analogy to one of the disorders rated under 38 C.F.R. § 4.71. See 38 C.F.R. § 4.27. Turning to the relevant evidence of the record, in January 1999, the Veteran underwent a VA examination. A physical examination revealed flexion at 115 degrees on the right knee and 110 degrees on the left knee with full extension bilaterally. Crepitus +1 was noted bilaterally and swelling in the left knee. The April 1998 x-ray reported the knees were within normal limits. There was no medial or lateral instability but pain when testing for medial instability. The report noted tenderness on the medial aspect of the patella and medial tibial plateau. The Veteran underwent a left knee arthroscopy and meniscus debridement in August 2001 and restricted from work activities for eight weeks. In November 2002, the Veteran was afforded another VA examination. The Veteran reported sniff knees with increased pain with flexion and extension, squatting, standing for 10 to 15 minutes, walking about 100 feet, crossing his legs, and running. A physical examination revealed right knee flexion at 110 degrees actively and passively with tenderness in the medial and lateral joint line and above the lateral joint line. Flexion at the left knee was 105 degrees actively and 125 degrees passively with tenderness in the medial and lateral joint lines and above the medial joint line. The Veteran had full extension bilaterally. There was no evidence of erythema, warmth, or evidence of effusion; the patella glided smoothly and without crepitus. McMurray test was negative and no ligamentous laxity was noted. X-ray reported no fracture, dislocation, or degenerative joint disease. The Veteran underwent treatment at the VA medical center in November 2003 where he reported bilateral knee pain. While he did not describe locking, he reported occasional popping, and was not sure of any grading. He stated one instance where his leg gave way but not associated with the twisting motion. He said he could not walk to stores or squat due to pain. An examiner revealed that "both knees [were] completely normal. He [had] full range of motion. No effusion. No tenderness at the joint line. Negative McMurray [and] Lachman. Negative anteroposterior drawer. His muscular status [was] normal. His alignment is normal. He has got good pulses distally. He is neurologically and vascularly intact. He walks without a limp." The VA physician could not "put [his] finger on anything for both knees" and recommended strengthening of his quadriceps with exercise. In May 2004, the Veteran underwent a MRI of the right knee at the Advanced Imaging Center at Lodi Memorial Hospital. The osseous structures were intact and in anatomic alignment. The marrow signal was normal and no focal chondral abnormality seen. The medial and lateral menisci, anterior and posterori cruciate ligaments, and medial and lateral collateral ligaments were also intact. Small amount of fluid collection was seen between the popliteaus muscle/tendon and fibular hear but the popliteaus tendon was intact. Otherwise, the remaining periarticular structures were unremarkable. The private doctor noted there was no evidence of meniscal, tendinous or liamentus injury. According to VA treatment records from April to June 2006, the Veteran was treated for bilateral knee pain but more so on the right knee. A physical examination in April 2006 revealed no swelling or erythema but tenderness on medial aspect of both knees. The range of motion was limited to full extension. In May 2006, the Veteran reported starting a new job at an autobody shop and is required to stand all day. This has been difficult given the condition of his knees. A physical examination revealed no effusion, full range of motion, sharp tenderness along medial joint line, McMurray sign with some pain, and the ligaments were stable in all directions. In addition, the x-rays were normal. In June 2006, it was reported the Veteran had a medial meniscus tear. The VA physician offered a knee arthroscopy. However, the Veteran stated he would wear his knee brace and return in two months for a follow up examination. The Veteran stated he would consider surgery if his symptoms continue. VA treatment records from March 2007 report the x-rays revealed early medial compartment mild narrowing with some patellofemoral disease. There was no obvious heat, inflammation or effusion. The Veteran had full range of motion with discomfort at the left part of flexion. The entire joints were sensitive at this examination. In August 2007, the Veteran underwent another VA examination for his knees. He reported pain and stiffness which worsens with movement and occasionally giving out. The Veteran denied flare- ups, no incapacitating episodes and no use of assistive devices. The examiner noted mild antalgic gait but no patella deformity, popliteal fossa swelling, locking, and giving out. The McMurray, Drawer, Lachman, and posterior minuscus test was negative. The Veteran had flexion at 125 degrees with pain, stiffness, lack of endurance from 100-125 degrees and full extension. Repetitive movements revealed additional "pain, fatigue, lack of endurance, with mild stiffness but no other mechanical limitations of any kind or Deluca factors that could constitute additional loss of motion during a flare." The VA examiner noted the right knee to be more problematic than the left. The Veteran was treated at the VA medical clinic in May and June 2008. In May 2008, x-rays of the knees were normal with no significant degenerative changes. In June 2006, the VA treatment record noted no laxity, edema, or effusion in the knees. At the Board hearing in March 2009, the Veteran testified that his right and left knee disabilities had worsened since the August 2007 examination. Therefore, the Board remanded this matter for a new VA examination and to obtain all outstanding medical treatment records. Subsequently, in August 2009 the Veteran was afforded another VA examination. He reported worsening pain mostly across the anterior knees and worse in the right than the left. The Veteran reported flare-ups in both knees aggravated by patellofemoral stressors and reported episodes where they give out on him. The VA examiner noted the Veteran ambulated with a stiff-kneed gait. There was no effusion bilaterally. The range of motion in the left knee is from 0 to 130 degrees unchanged with three repetitions and also 0 to 130 degrees in the right knee but with pain and guarding with range of motion last 105 degrees. The Veteran had tenderness over the distal pole of the patellae bilaterally right worse than left. There was no true medial or lateral joint line tenderness. The knees were both stable to varus, valgus, Lachman, and posterior drawer. The McMurray test was negative. X-rays at this time revealed minimal to no degenerative changes, bilaterally. It was further noted that "[w]ith repetitive activities [the Veteran was] likely to have flare-ups of worsening pain, lack of strength and endurance, and may lose another 15-30 degrees of global range of motion across the right knee subtracting from the 130 degrees of flexion." However, it was not likely that the Veteran would lose significant range of motion in the left knee. In August 2009, the Veteran received treatment from a private physical for his knee condition. It is noted the Veteran's left knee pain has improved since the arthroscopy in early 1990s. However, his right knee has been treated with "vicodin, motrin, a TENS unit, RICE, braces, an informal exercise." A physical examination revealed "antalgic gain in the injured knee, reduced range of motion, negative [D]rawer sign, collateral ligaments [were] intact, negative McMurray sign, negative Apley's sign, negative Lachman sign, patellar tenderness, normal contralateral knee exam. Mild decrease in right knee [range of motion]." In addition, there was no knee erythema, swelling, or warmth. Mild bilateral crepitus was noted. The Veteran also received treatment for his knees at the VA medical center in August 2009 where the physician noted "[n]o true mechanical locking. He gets lots of clicking and popping and knees give way. No true instability." The Veteran uses a cane but not a brace and had been attending physical therapy. In December 2009, the Veteran has been receiving hyalgan injection in his knees and reported "it feels as though it is already helping." He continued to receive hyalgan injections into January 2010. Finally, in February 2010 the VA examiner who conducted the August 2009 VA examination submitted an addendum to the August 2009 examination report stating that the Veteran's claims file was not available at the time of the examination. However, the claims file was recently made available to him and he stated he had the opportunity to review the medical evidence of record in its entirety, including the Board hearing and private treatment record from August 2009. The VA examiner stated there is no change to his examination and the conclusions still stand. However, the VA examiner stated the Veteran "suffers from bilateral patellofemoral syndrome and does have a sensation of the knees giving way but not true ligamentous instability." Having reviewed the record, the Board finds that a rating in excess of 10 percent for right and left knee disability is not warranted. The competent and probative evidence does not establish a degree of impairment in the right or left knee, warranting ratings in excess of those assigned by the AOJ. The Veteran's disability manifests through limited range of motion and pain on motion. However, at no point during the appeal period was the Veteran's extension of the right and left leg limited to 15 degrees as required for the 20 percent rating under Diagnostic Code 5261. The Veteran's extension exceeded this range in all VA examinations and there is no other evidence indicating that the Veteran had extension limited to 15 degrees. There was also no limitation of flexion to 30 degrees under Diagnostic Code 5260. The Board has considered functional loss due to pain, etc., and notes that on examination repetition did not decrease the range of motion beyond the criteria for a 20 percent rating under Diagnostic Code 5260 and 5261. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has considered whether any other relevant Diagnostic Code would allow for a higher disability rating at any time during the pendency of the Veteran's claim. However, the evidence of record does not demonstrate that the Veteran has exhibited any symptoms that would warrant the application of any other diagnostic code throughout the pendency of the claim. The evidence within the claims file do not demonstrate the Veteran's bilateral knee disabilities manifest instability, ankylosis, or tibia malunion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5262. As such, the Veteran would not be entitled to a higher disability evaluation under any other diagnostic code (or a separation evaluation under another code), and his claim is denied. A determination as to the degree of impairment due to service- connected disability requires competent evidence. The Veteran is competent to report his symptoms, to include pain. His lay opinion alone, however, is not sufficient upon which to base a determination as to the degree of impairment due to the service connected right and left knee disabilities. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record. See Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992); See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303 (2007). In reaching the decision above the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against entitlement to an increased rating for the Veteran's residuals of a right knee injury, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Furthermore, the Board finds that this matter need not be remanded to have the RO refer the Veteran's claim to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service, pursuant to 38 C.F.R. § 3.321(b), for assignment of an extraschedular rating. The Board notes the above determination is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities, and there is no showing that the Veteran's disability reflects so exceptional or so unusual a disability picture as to warrant the assignment of a higher rating on an extraschedular basis, and indeed, neither the Veteran nor his representative have identified any exceptional or unusual disability factors. See 38 C.F.R. § 3.321. The Board observes that there is no showing the disability results in marked interference with employment. His disability has not required any, let alone, frequent periods of hospitalization, or otherwise rendered impractical the application of the regular schedular standards. Absent evidence of these factors, the criteria for submission for assignment of an extraschedular rating are not met. Thus, a remand this claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not necessary. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial rating in excess of 10 percent for a right knee disability is denied. Entitlement to an initial rating in excess of 10 percent for a left knee disability is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs