Citation Nr: 1122188 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 10-06 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a disability rating in excess of 10 percent for a right knee disorder, described as chondromalacia, right knee. REPRESENTATION Appellant represented by: Jeffrey J. Bunten, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to November 1977. This matter comes to the Board of Veterans Appeals (Board) from a December 2008 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT The service-connected right knee disability is manifested by a slight knee disability; it is not manifested by limitation of flexion of 60 degrees or less, nor is it productive of limitation of extension to 5 degrees or more; the preponderance of the evidence indicates that the disability is not manifested by recurrent subluxation or instability. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for chondromalacia of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1-4.16, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5257, 5260, 5261, 5262 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The VCAA provides, among other things, for notice and assistance to VA claimants under certain circumstances. VA has issued final rules amending its adjudication regulations to implement the provisions of the VCAA. See generally 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The intended effect of these regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits or who attempts to reopen a previously denied claim. In order to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. The Veteran was issued an April 2008 VCAA notification letter. After review of this letter, the Board finds that VA fulfilled the notice requirements under 38 U.S.C.A. § 5103(a). The Veteran was informed about the information and evidence not of record that is necessary to substantiate his claim for increase; the information and evidence that VA will seek to provide; and the information and evidence the claimant is expected to provide. In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. As the April 2008 VCAA letter was issued prior to the December 2008 rating decision on appeal, the notice was timely. The Board also finds that all necessary assistance has been provided to the Veteran. The claims file contains VA treatment records and the reports from VA examinations that evaluated the right knee disability in November 2008 and January 2010. These examination reports are adequate for rating purposes because they address the Veteran's complete range of symptoms in conjunction with the rating criteria, and the present a complete picture of the Veteran's right knee disability. See 38 C.F.R. §§ 3.326, 3.327 (2010). In view of the foregoing, the Board finds that VA has fulfilled its duty to notify and assist the Veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In Bryant v. Shinseki, 22 Vet. App. 488 (2010) (per curiam), the Court recently held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Board hearing, the Veteran was represented by an attorney. The attorney discussed the Veteran's treatment at the VA Medical Center (VAMC) and the basis for the request for an increased rating. The VLJ detailed the issue on appeal at the beginning of the hearing. The Veteran's current knee disability symptoms were discussed in detail, as was the effect of his symptoms on his ability to perform his functions of daily living as well as work. The attorney clearly indicated that the basis of the appeal was the contention that the disability of the right knee was more disabling than indicated by the currently assigned rating, and thus, an increased rating was warranted. Both the VLJ and the Veteran's attorney asked questions deigned to address the current extent of the Veteran's disabilities. The hearing concentrated on the contentions on appeal and the Veteran and his attorney demonstrated actual knowledge of the pertinent facts needed to substantiate the contentions. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. Law and Regulations Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. 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 disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In Francisco v. Brown, 7 Vet. App. 55 (1994), the Court held that, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. However, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are appropriate for an increased rating claim, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. § 4.3. The regulations also provide that 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. 38 C.F.R. § 4.7. The Board notes that the evaluation of the same disability under various diagnoses is to be avoided. That is to say that the evaluation of the same manifestation under different diagnoses, a practice known as "pyramiding," is to be avoided. See 38 C.F.R. § 4.14. The critical inquiry in making such a determination is whether any of the symptomatology is duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259 (1994). Diagnostic Codes 5256 through 5263, located in 38 C.F.R. § 4.71a, provide rating criteria for disabilities of the knee and leg. Diagnostic Code 5256 provides rating criteria for ankylosis of the knee. Diagnostic Code 5257 provides compensation for disability due to subluxation or instability of the knee. Slight recurrent subluxation or lateral instability is rated at 10 percent disabling. Moderate subluxation or lateral instability is rated at 20 percent disabling and severe subluxation or lateral instability is rated at 30 percent disabling. Diagnostic Code 5258 provides compensation for cartilage, semilunar, dislocated with frequent episodes of "locking," pain,, and effusion into the joint which is rated as 20 percent disabling. Diagnostic Code 5259 provides compensation for cartilage, semilunar, removal of, symptomatic which is rated as 10 percent disabling. As noted, the evaluation of the same disability under various diagnoses is to be avoided. Limitation of motion and instability of the knee involve different symptomatology, however, and separate ratings are specifically allowed with X-ray evidence of arthritis. See VAOGCPREC Op. No. 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997); and VAOGCPREC Op. No. 9-98 (Aug. 14, 1998), 63 Fed. Reg. 56,704 (1998). For limitation of motion, the schedule of ratings provides compensation dependent upon the severity of the limitation of flexion and/or extension under Diagnostic Codes 5260 and 5261, respectively, both located in 38 C.F.R. § 4.71a. Diagnostic Code 5260 allows for assignment of a noncompensable evaluation when there is evidence of flexion limited to 60 degrees, assignment of a 10 percent rating when there is evidence of flexion limited to 45 degrees, assignment of a 20 percent rating for flexion limited to 30 degrees, and assignment of a 30 percent rating for flexion limited to 15 degrees. Diagnostic Code 5261 provides for assignment of a noncompensable rating for extension limited to 5 degrees, assignment of a 10 percent rating when there is evidence of extension limited to 10 degrees, a 20 percent rating for extension limited to 15 degrees, and higher evaluations for more severely limited extension. Diagnostic Code 5262, impairment of the tibia and fibula, allows for assignment of a 10 percent rating when there is slight knee or ankle disability, assignment of a 20 percent rating when there is moderate knee or ankle disability, assignment of a 30 percent rating when there is marked knee or ankle disability, and, assignment of a 40 percent rating when there is nonunion of the tibia and fibula, with loose motion, requiring a brace. Diagnostic Code 5263 provides a 10 percent rating for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). Factual Background and Analysis The Veteran contends that his service-connected chondromalacia of the right knee is more severe than the current 10 percent rating contemplate. In his Board hearing testimony, the Veteran testified regarding the effect of his right knee disability. He noted that he has been using a cane for the past 3 years because he was having trouble walking, and the right knee gives out a couple of times a week. He had constant chronic pain in the right knee. He described having undergone 4 surgeries to the right knee. He testified that knee replacement surgery was considered but that it was inadvisable due to his relatively young age. He also has undergone physical therapy and was taking pain medication which had no effect. The Board notes that at the time of the hearing the Veteran reported he was able to walk a couple of blocks, rest, and then proceed a little further. Service connection was established for the chondromalacia of the right knee by way of a December 1992 rating decision which granted service connection and assigned a non compensable rating. By way of a November 2002 rating decision the non compensable rating was increased to 10 percent. The Veteran filed the current claim for increase in March 2008. Pursuant to the claim, the Veteran underwent a November 2008 VA examination. The Veteran reported pain, weakness, stiffness, instability, giving way, locking, fatigability, and lack of endurance. He was treated with therapy, Tramadol and Vicodin as needed. He reported no response to treatment. He had flare-ups from walking, running, and going up steps. He used a cane and a knee brace to stabilize the knee. He underwent surgical procedures in 1978, 1985, 1995, and 2007 on the right knee. The examiner noted no dislocations, no inflammatory arthritis, and no ankylosis of the right knee. Range of motion (ROM) of the right knee was extension to 0 degrees and flexion from 30 to 100 degrees with pain. Varus/valgus, lateral and medial collateral ligaments, and anterior cruciate ligaments, and posterior cruciate ligaments were normal. McMurray test was negative. The examiner noted pain, fatigue, weakness, lack of endurance, incoordination, effusion, instability, tenderness, and guarding of movement, but with no additional limitation of motion based on any of these factors. The examiner noted a diagnosis of chondromalacia, right knee. X-rays were normal at this examination. The Veteran underwent an additional VA examination in January 2010. The examiner noted that the Veteran was no longer employed, and he had no current adverse occupational implications from a right knee standpoint. The Veteran reported that he first injured his right knee during service and underwent a series of surgeries since that time with the most recent being in July 2007. He reported failed cortisone and synovisc injections. X-rays from 2007 revealed minimal osteoarthritis, and magnetic resonance imaging (MRI) showed mild patellofemoral osteoarthritis but no internal derangement. He did have a complex lateral meniscal tear which was debrided. The anterior cruciate and the posterior cruciate ligaments were intact. The medial compartment had a full thickness cartilage flap over the medial femoral condyle which was debrided back to a stable edge. He had been given a brace but it chafed his skin and so he quit using it. His average discomfort was 6/10 even with mild flexion and extension. He used a four poster walker, cane, and wheelchair. He reported only being able to stand or walk four or five minutes. He could walk independently for short distances. He did not experience locking, but had swelling during flare-ups. Examination revealed a painful antalgic gait with a right sided limp. He was able to traverse 25 ft and return. He had mild genu varum, right knee. His right calf was 2.5 cm. smaller and his right knee was 1.5 cm. smaller than the left. He had multiple scars which were consistent with his surgeries. The examiner noted the Veteran had 4 degrees of full extension and 97 degrees of flexion by goniometer. He reported pain, fatigue, weakness, and lack of endurance. There was no incoordination. The ROM was not further functionally limited following repetitive ROM. X-rays revealed intact osseous structure and normal anatomical alignment. The joint spaces were maintained. There were no fractures or dislocations. The impression was a normal X-ray of the right knee. The diagnosis was osteoarthritis of the right knee. The veteran had cartilaginous deterioration as well as patellofemoral compartment osteoarthritis and certainly chondromalacia. Finally, subsequent to the VA examination, on the same day, the Veteran was seen in the VAMC orthopedic surgery clinic as a follow up to a right lumbar discectomy which he underwent less than three weeks prior. He was scheduled to undergo a repeat lumbar discectomy later that week. He complained about his right knee pain, and the examiner noted that he was at a loss to explain the Veteran's right knee symptoms based on the available radiological studies which included normal x-rays and MRI studies. The Veteran was advised to wait regarding his right knee symptoms until after the repeated lumbar procedure. The Board finds that a rating in excess of 10 percent for chondromalacia of the right knee is not warranted. The rating criteria for knee disabilities are outlined above. Increased ratings or separate ratings require evidence of greater limitation of motion, ankylosis, or recurrent subluxation or lateral instability. There is no evidence that this appeal includes evidence of dislocated cartilage or removed cartilage, impairment of the tibia or fibula, or genu recurvatum. The original right knee rating was based on a diagnosis of chondromalacia patella. The 10 percent rating was assigned because of active patellofemoral joint disease with evidence of pain with motion. Here, the two examinations conducted during the pendency of the appeal reveal extension to 0 or 4 degrees and flexion to 110 or 97 degrees, in either case this is a greater range of motion in flexion and extension than is compensable, and there is no basis for a higher rating due to limitation of motion. 38 C.F.R. § 4.71a, DC 5260 and 5261 (2010). There is no clinical evidence of ankylosis or recurrent subluxation. 38 C.F.R. § 4.71a, DC 5256 and 5257 (2010). The Board notes that at the time of the November 2008 VA examination the examiner noted instability of the right knee but did not address this observation further. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Court stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . As indicated by the Court, credibility is determined by the Board. So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). A review of the VAMC treatment records as well as prior VA examinations does not contain medical evidence of subluxation or instability of the right knee. A November 1992 VA examination reported observed no lateral instability of the right knee; a January 2001 VA examination observed normal alignment of the right knee; a June 2007 VAMC clinical notation observed no significant mechanical symptoms, and x-rays revealed excellent alignment of the right knee joint. At the time of the hearing the Veteran and his representative asserted that a total knee replacement had been suggested to the Veteran in the future, the Veteran also testified that his knee was constantly going out, and the level of impairment he had was not adequately reflected by the assigned rating. The Board notes the medical evidence of record which does not indicate a history of instability or subluxation of the right knee. Based on the available evidence of record, the Board finds the January 2010 VA examination to be more probative than the November 2008 VA examination regarding the current stability of the Veteran's right knee disability. Based on this finding, as well as the absence of any documented instability of the right knee during service or at the present time, entitlement to a separate rating under Diagnostic Code 5257 for disability due to subluxation or instability of the knee is not warranted. The Board also finds that a separate 10 percent rating for arthritis of the right knee is not warranted. 38 C.F.R. § 4.71a DC 5003 (2010). Where there was some mild arthritis shown by X-rays in 2007, this was before the rating period in question, since the Veteran filed his claim for increase in 2008. The VA examination in November 2008 indicated X-rays were normal. The January 2010 VA examination also showed normal X-rays. Lastly, a VA progress note from Dr. Robert Shively dated in January 2010 indicated that X-rays of the right knee were essentially normal and the MRI was entirely normal, and that he was unable to explain the Veteran's symptoms based on that available radiographic studies. In light of the multiple X-rays taken since 2008 that show a normal right knee, the Board finds that there is insufficient evidence to support a finding of arthritis and therefore, no separate rating is warranted under DC 5003. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that in evaluating a service-connected disability, the Board must consider functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. See also 38 C.F.R. § 4.59 (regarding arthritis). In this case, there is no medical evidence to show that pain or flare-ups of pain, supported by objective findings, results in additional limitation of motion of the right knee to a degree that would support a rating in excess of 10 percent or a separate compensable rating under Diagnostic Code 5257 or VAOPGCPREC 9-04, nor does the medical evidence show such additional limitation of motion due to fatigue, weakness, incoordination or any other sign or symptoms attributable to the knee disability. The examiner in November 2008 specifically indicated that there was no additional limitation of motion caused by pain, fatigability, weakness, incoordination, instability, or any other factor. The January 2010 examiner found that there was weakness and fatigability but that the Veteran's range of motion was not further limited by these factors. Taking all the evidence into account, the Board finds that a rating in excess of 10 percent for a right knee disability is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1-4.16, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5257, 5260, 5261, 5262 (2010). As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not applicable to this claim. 38 U.S.C.A. § 5107(b); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Based on these findings, the Board denies the claim for a schedular rating in excess of 10 percent for chondromalacia of the right knee. As required by Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), the Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations, whether the Veteran raised them, including § 3.321(b)(1), which governs extraschedular ratings. Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. In accordance with Thun v. Peake, 22 Vet. App. 111 (2008), there is a sequential three-step analysis to determine whether a case should be referred for extraschedular consideration. Step one, is to determine whether the schedular rating adequately contemplates a claimant's disability picture. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating is required. If the schedular criteria do not contemplate the claimant's level of disability and symptomatology and the schedular criteria are therefore found to be inadequate, then step two is to determine whether the claimant's disability picture is exceptional with such related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria. If the disability picture meets the second step, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Regarding the first step of Thun, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology of the right knee. In other words, the Veteran does not experience any symptomatology not already contemplated by the Rating Schedule. As the rating criteria reasonably describe the disability and symptomatology, the threshold factor for extraschedular consideration under step one of Thun has not been met, and the Board need not reach the second step of the Thun analysis, that is, whether the disability picture is exceptional. As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER An increased rating for chondromalacia of the right knee, currently evaluated as 10 percent disabling, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs