Citation Nr: 1111199 Decision Date: 03/21/11 Archive Date: 04/05/11 DOCKET NO. 06-21 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a compensable rating for the period prior to October 9, 2008, and a rating higher than 10 percent for the period since October 9, 2008, for a chronic left knee sprain and patellar tendonitis. 2. Entitlement to a compensable rating for the period prior to October 9, 2008, and higher than 10 percent for the period since October 9, 2008, for a chronic right knee sprain and patellar tendonitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from July 1999 to November 2003. These matters are before the Board of Veterans' Appeals on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The case was certified to the Board by the Pittsburgh, Pennsylvania, RO. The Veteran currently resides in Colorado. The Veteran requested a Board Hearing via video conference, which a May 2008 RO letter informed him was scheduled for June 16, 2008. He failed to appear for his scheduled hearing, and he requested the hearing be rescheduled in a letter. Although the Veteran's letter is dated within 30 days of the hearing date, the VA date stamp indicates VA did not receive the letter until October 2008, which is outside the timeframe for which a rescheduling may be requested. Further, the reasons the Veteran provided for not appearing at his hearing are not good cause. Thus, his hearing request is deemed to have been withdrawn. See 38 C.F.R. §§ 20.702, 20.704 (2010). In July 2008, the Board remanded the case to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development. The AMC/RO substantially completed the additional development as directed. In a March 2009 rating decision the AMC/RO granted a 10 percent rating for each knee effective October 9, 2008, and returned the case to the Board for further appellate review. In May 2009, the Board remanded the case again for additional development, which the AMC/RO completed. The AMC/RO continued the 10 percent rating, and returned the case to the Board for further appellate review. FINDINGS OF FACT 1. The AMC completed all development directed in the May 2009 Board remand. 2. The preponderance of the evidence of record shows that for the period prior to October 9, 2008, neither the left nor right knee disorder was manifested by ankylosis, flexion to 45 degrees or less, extension to 10 degrees or more, objective evidence of pain on motion, cartilage symptomatology, or subluxation or instability. 3. The preponderance of the evidence of record shows that for the period October 9, 2008, forward, neither the left nor right knee disorder was manifested by ankylosis, flexion to 30 degrees or less, extension to 10 degrees or more, cartilage symptomatology, or subluxation or instability. CONCLUSIONS OF LAW 1. The requirements for a compensable evaluation for a chronic left knee sprain and patellar tendonitis for the period prior to October 9, 2008, were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.71a, Diagnostic Codes 5003, 5024, 5260, 5261 (2010). 2. The requirements for a compensable evaluation higher than 10 percent for a chronic left knee sprain and patellar tendonitis for the period since October 9, 2008, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.71a, Diagnostic Codes 5003, 5024, 5260, 5261. 3. The requirements for a compensable evaluation for a chronic right knee sprain and patellar tendonitis for the period prior to October 9, 2008, were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.71a, Diagnostic Codes 5003, 5024, 5260, 5261. 4. The requirements for a compensable evaluation higher than 10 percent for a chronic right knee sprain and patellar tendonitis for the period since October 9, 2008, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.71a, Diagnostic Codes 5003, 5024, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in July 2005, May 2006, and June 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and notice of how disability ratings and effective dates are assigned. Following issuance of 2006 and 2009 letters, and additional development, the claim was reviewed on a de novo basis. The case was most recently readjudicated in a June 2010 supplemental statement of the case. Thus, any timing-of-notice error was cured and rendered harmless. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. 38 C.F.R. § 3.159(c). While the Veteran may not have received full notice prior to the initial decision, after notice was provided, he was afforded a meaningful opportunity to participate in the adjudication of the claim via the presentation of pertinent evidence and testimony. Thus, the statutory purposes of content-compliant notice and assistance were not frustrated. See Washington v. Nicholson, 21 Vet. App. 191 (2007). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. § 4.45. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. Where an increase in the level of a service-connected disability is at issue, however, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nonetheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Analysis Historically, a May 2004 rating decision granted entitlement to service connection for a bilateral chronic knee sprain with patellar tendinitis, and assigned initial noncompensable ratings for each knee, effective November 2003, under Diagnostic Code 5024-5260. 38 C.F.R. §§ 4.31, 4.71a. A hyphenated code is used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation. 38 C.F.R. § 4.27. VA received the Veteran's current claim for an increased rating in July 2005. He reported having constant pain and discomfort, difficulty moving around, and a decreased range of motion. Diagnostic Code 5024 rates tenosynovitis, which the rating criteria require be rated as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the joint involved. If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable. Id. 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. With any form of arthritis, painful motion is an important factor. It is the intention of the rating schedule 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. A compensable evaluation under Diagnostic Code 5003 and 38 C.F.R. § 4.59 (for painful motion) is in order where arthritis is established by X-ray findings and no actual limitation of motion of the affected joint is demonstrated. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Where a compensable limitation of motion is demonstrated in the joint, the Lichtenfels rule is not applicable. A limitation of flexion of the leg to 60 degrees warrants a noncompensable evaluation. Limitation of flexion of the leg to 45 degrees warrants a 10 percent rating. A 20 percent evaluation requires that flexion be limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A limitation of extension of either leg to 5 degrees warrants a noncompensable evaluation. A 10 percent evaluation requires that extension be limited to 10 degrees. A 20 percent evaluation requires that extension be limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The August 2005 VA examination report notes the Veteran reported bilateral knee pain after strenuous activity. He described having occasional warmth but no swelling or redness. The Veteran denied any regular treatment, but used ibuprofen for relief. He was attending school full time at the time of the examination, but stated that his knee disorders had no impact on his studies. He denied ligament and meniscus instability, as well as any history of dislocation or subluxation. He was able to walk without any assistive devices, and he denied use of any. Physical examination of both knees revealed no objective evidence of pain on motion. There was no evidence of edema, redness, or swelling. There was no joint line tenderness, and no meniscal or ligamentous instability of either knee. Range of motion was from 0 to 140 degrees for each knee, with no change after 10 repetitions. No abnormality was noted on X-ray examination. The diagnosis was bilateral knee sprain. The objective findings at the August 2005 clinical examination show the Veteran's bilateral knee disorder continued to manifest at the noncompensable rate. 38 C.F.R. § 4.7. A compensable rating was not met or approximated, as range of motion of each knee was normal. See 38 C.F.R. § 4.71a, Plate II. Further, bilateral knee motion was demonstrated without any objective evidence of pain, etc., 38 C.F.R. §§ 4.40, 4.45, 4.59, and there was no instability or subluxation. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. X-rays were interpreted as negative. Thus, there was no factual basis for a compensable evaluation as of the 2005 examination. The Veteran made no specific assertion in his notice of disagreement or substantive appeal, other than he believed his disability merited a higher rating. VA outpatient records of July 2006 note the Veteran's knees continued to manifest a full and pain-free range of motion. Outpatient entries in May 2007 note the Veteran's complaints of a possible torn ligament and that his knee gave way. Examination revealed tenderness at the lateral joint spaces and with valgus. Although the examiner noted that the left knee felt like there was laxity at the joint, Lachman's and McMurray's tests were negative. Significantly, as discussed further below, the above findings were not due to chronic worsening of the Veteran's service connected disability but rather followed an acute injury after playing hockey. Thus, the Board finds the knees continued to manifest at a noncompensable rate. Another examination was arranged. The October 2008 VA examination report notes the claims file was not available for review, but the examiner took a comprehensive history from the Veteran. The Board finds that the history considered by the examiner was accurate. Hence, the Board finds no due process violation. The Veteran reported popping and snapping in the knees with associated pain. He denied locking. There had been slight anterior knee swelling bilaterally, and left knee pain was reportedly greater than that on the right. He also reported stiffness, but his daily activities were not impacted. He could stand for any amount of time, but he stopped running because of post-running pain. The Veteran lifted weights but he did not do squats. He was employed as a real estate salesman, where his knee disorders did not impact employment. The Veteran estimated his flare-ups occurred once or twice a week, which consisted of increased aching, for which he took over-the-counter medication for relief. Physical examination revealed the knees to be essentially unremarkable. His gait was normal, and he did not use a cane or other assistive device. The right knee showed no effusion, a negative Lachman's, and stability to varus and valgus stress. Range of motion was from 0 to 130 degrees with no pain throughout the arc at endpoint. There was no tenderness to patellar ballottement, and McMurray's was negative. The Veteran reported his left knee had been slightly more painful since he "tore a ligament 1-1/2 years ago." (Quotes in original). Left knee motion was from 0 to 125 degrees with no pain throughout the arc at endpoint. Collateral examination revealed findings that were identical to those noted on examination of the right knee. Each knee showed very minimal patellofemoral crepitus. There was no erythema, hyperemia, or ecchymosis. X-rays showed no evidence of knee joint effusion, or clear evidence of a degenerative or erosive process. The examiner diagnosed bilateral early patellofemoral chondromalacia with malalignment, no subluxation of either patella. The impairment was slight. Upon receipt of the examination report, the RO, via the March 2009 rating decision, granted a compensable rating of 10 percent for each knee, effective the date of the examination, October 9, 2008. See 38 C.F.R. § 3.400(o). In light of the fact the limitation of motion manifested by both knees was noncompensable, the RO assigned the increase per the Lichtenfels rule. The Board finds the objective evidence of record shows that entitlement to a higher rating was not met or approximated, as the examiner noted that repetitive use did not result in any additional loss of range of motion due to pain, etc., in either knee. See 38 C.F.R. §§ 4.40, 4.45. Further, as there was no evidence of subluxation or instability, there is no factual basis for a separate rating for that pathology. The Board remanded the case so the RO could rate the Veteran's knees in view of the pre-October 2008 evidence of record. Hart, 21 Vet. App. 505. Further, in light of the Veteran's report of having sustained a knee injury while playing ice hockey, the Board asked that the examiner assess whether the current state of the Veteran's knees were due to the service-connected disability or the intervening post service ice hockey injury. Where service connection is in effect for one diagnosis involving some component of an anatomical or functional system, and there are additional diagnoses concerning pathology of that system of record, there must be evidence that permits the adjudicators to distinguish between manifestations that are service-connected and those that are not. See Waddell v. Brown, 5 Vet. App. 454, 456-57 (1993). When it is not possible to separate the effects of a non-service-connected condition from those of a service- connected condition, VA regulations dictate that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102 (2003). The Board discerns no need for extensive discussion. Suffice it to say that the Board agrees with the Veteran's representative that the examiner's 2010 opinion does not sufficiently delineate the symptomatology. Therefore, the objective findings on clinical examination at the October 2008 examination are deemed secondary to the service-connected bilateral knee disorder. The Board, however, discussed above why neither knee met or approximated a rating higher than 10 percent. In light of the above, the Board is constrained to find that the preponderance of the evidence shows that each knee most nearly approximated noncompensable ratings for the period prior to October 9, 2008, and 10 percent ratings since October 9, 2008,. 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5024-5260. The Board has considered the propriety of a referral for extraschedular consideration but finds the rating criteria fully describe the symptoms and severity of the Veteran's bilateral knee disability. Thus, his disability picture is not exceptional. See Thun v. Peake, 22 Vet. App. 111 (2008). In the absence of an exceptional disability picture, referral is not appropriate. See 38 C.F.R. § 3.321(b)(1). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to a compensable rating for the period prior to October 9, 2008, and higher than 10 percent for the period since October 9, 2008, for a chronic left knee sprain and patellar tendonitis, is denied. Entitlement to a compensable rating for the period prior to October 9, 2008, and higher than 10 percent for the period since October 9, 2008, for a chronic right knee sprain and patellar tendonitis, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs