Citation Nr: 1142829 Decision Date: 11/22/11 Archive Date: 12/06/11 DOCKET NO. 09-05 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right retropatellar pain syndrome, claimed as chronic knee pain. 2. Entitlement to an initial compensable rating prior to August 13, 2009, and to a rating in excess of 10 percent thereafter, for left retropatellar pain syndrome, claimed as chronic knee pain. 3. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease, status post herniated nucleus pulposus, lumbar spine. 4. Entitlement to an initial rating in excess of 10 percent for headaches. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from May 1986 to September 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. In July 2009 the Veteran wrote to the RO and requested to withdraw his appeal for a compensable initial rating for left ear hearing loss. Consequently only the issues listed on the cover sheet of this decision are currently in appellate status before the Board. At a July 2011 hearing the Veteran submitted additional medical records along with a waiver of RO review of these records. The issues of increased initial ratings for lumbar spine and headache disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Since discharge from service the Veteran's right knee has had no instability, full extension, and almost full flexion. 2. Prior to August 13, 2009, the Veteran's left knee was stable and had full range of motion. 3. Since August 13, 2009, the Veteran has had a stable left knee with full extension, but slightly less than full flexion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right retropatellar pain syndrome, claimed as chronic knee pain, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2011). 2. The criteria for a compensable rating prior to August 13, 2009, and to a rating in excess of 10 percent thereafter, for left retropatellar pain syndrome, claimed as chronic knee pain, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA 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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The Veteran's appeal arises from the Veteran's disagreement with the initial rating evaluations assigned following the grant of service connection. In such cases the VCAA requires that the Secretary need only provide the Veteran with a generic notice after the initial claim for benefits has been filed and before the initial decision. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). No additional notice is required in the adjudication process because the other forms of notice-such as notice contained in the rating decisions and statements of the case (SOC)-have already provided the claimant with the notice of law applicable to these specific claims on appeal. Wilson v. Mansfied, 506 F.3d 1055 (Fed. Cir. 2007). The Board further notes that the RO sent the Veteran a letter in July 2009 which advised the Veteran of the VCAA, including the types of evidence and/or information necessary to substantiate his claims and the relative duties upon himself and VA in developing his claims. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The record reflects that the Veteran's service treatment records, VA medical records, private medical records, and TRICARE medical records have been obtained. The Veteran has been provided VA medical examinations. The Veteran has provided testimony at a hearing before a Decision Review Officer (DRO) and at a hearing before a Veterans Law Judge. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. The Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Right Knee As explained below, the Board finds that the Veteran's right knee disability has not met the criteria for a rating in excess of 10 percent at any time since the grant of service connection. Service connection was granted and a noncompensable rating was assigned for right retropatellar pain syndrome, claimed as chronic knee pain, by the April 2008 rating decision on appeal. A November 2010 rating decision granted a 10 percent rating for his right knee disability effective from the date of service connection, October 1, 2007. At his RO hearing in July 2009 the Veteran reported that he avoided stairs and that he could not walk for long distances due to his knee problems. In July 2011 the Veteran testified that he had constant bilateral knee pain and that he avoided stairs due to knee pain. The RO has rated the Veteran's right knee disability as osteomalacia under Diagnostic Code 5014. Osteomalacia is rated based on limitation of motion of affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5014. Diagnostic Code 5003 provides the criteria for degenerative arthritis and provides for a 10 percent rating when there is degenerative arthritis and there is limitation of motion that is noncompensable under the appropriate diagnostic code. In this case the Veteran has been assigned a 10 percent rating under Diagnostic Code 5014 based on a slight limitation of right knee flexion. The medical evidence of record, including the November 2007 and August 2009 VA examination reports, shows the Veteran to have full flexion of the right knee or flexion limited to only 135 degrees. All motion was noted to be painless. Consequently, the Veteran has not met the criteria for a rating in excess of 10 percent under Diagnostic Code 5260 for limitation of flexion of the right knee at any time since the grant of service connection. Diagnostic Code 5260 requires flexion limited to 45 degrees for a 10 percent evaluation and flexion limited to 30 degrees for a 20 percent evaluation. The medical evidence of record, including the VA examination reports, reveals that the Veteran has full extension (to zero degrees) of the right knee. Accordingly, the Veteran has not met the criteria for a separate compensable rating based on limitation of extension at any time since the grant of service connection. Diagnostic Code 5261 requires extension limited to 10 degrees for a 10 percent evaluation and extension limited to 15 degrees for a 20 percent evaluation. In this case the record indicates that the Veteran has full, or almost full, ranges of motion of the right knee without pain. The August 2009 VA examiner noted that there was no objective evidence of pain with right knee motion and that there was no evidence of pain, or of additional limitations, on repetition of motion. Consequently, the Veteran has not met the criteria for even a compensable rating under either Diagnostic Code 5260 or 5261 when these factors are taken into consideration. See 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995). Diagnostic Code 5257 provides that slight recurrent subluxation or lateral instability warrants a 10 percent evaluation and moderate recurrent subluxation or lateral instability warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The VA examinations indicated that the Veteran has no instability of the right knee. Consequently the Veteran is not entitled to a separate compensable rating under Diagnostic Code 5257. Because the Veteran has not met the criteria for a separate compensable rating for his right knee disability under any applicable diagnostic code, and has not met the criteria for a rating in excess of 10 percent under the diagnostic code currently assigned, at any time since the grant of service connection, an increased initial rating for right retropatellar pain syndrome, claimed as chronic knee pain is not warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). III. Left Knee As explained below, the Board finds that the Veteran's left knee disability has not met the criteria for a compensable rating prior to August 13, 2009, or to a rating in excess of 10 percent thereafter. Service connection was granted and a noncompensable rating was assigned for left retropatellar pain syndrome, claimed as chronic knee pain, by the April 2008 rating decision on appeal. The November 2010 rating decision granted a 10 percent rating for his left knee disability effective from August 13, 2009. The RO has also rated the Veteran's left knee disability as osteomalacia under Diagnostic Code 5014. As noted above, osteomalacia is rated on limitation of motion of affected parts, as degenerative arthritis. Diagnostic Code 5003 provides the criteria for degenerative arthritis and provides for a 10 percent rating when there is degenerative arthritis and there is limitation of motion that is noncompensable under the appropriate diagnostic code. In this case, effective from August 13, 2009, the Veteran has been assigned a 10 percent rating based on a slight limitation of flexion. Prior to that date the medical evidence revealed the Veteran to have full painless range of motion of the left knee and no instability of the left knee. Consequently, prior to August 13, 2009, the Veteran was not entitled to a compensable rating under any applicable diagnostic code, including Diagnostic Codes 5003, 5014, 5257, 5260 or 5261. The August 13, 2009, VA examination report revealed the Veteran's left knee flexion to be slightly limited to 135 degrees. Consequently he did not meet the criteria for a rating in excess of 10 percent from August 13, 2009, under Diagnostic Code 5260. From August 13, 2009 the Veteran has had full extension (to zero degrees) of the left knee and no instability of the left knee. Accordingly, the Veteran has not met the criteria for a separate compensable rating based on limitation of extension, or based on instability. 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5261. In this case the medical evidence indicates that the Veteran has full, or almost full, ranges of motion of the left knee without pain. There has been no evidence of pain, or of additional limitations, on repetition of motion of the left knee. Consequently, since the grant of service connection the Veteran has not met the criteria for even a compensable rating under either Diagnostic Code 5260 or 5261 when these factors are taken into consideration. See 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995). Because the Veteran has not met the criteria for a separate compensable rating for his left knee disability under any applicable diagnostic code, and has not met the criteria for a compensable rating prior to August 13, 2009, or to a rating in excess of 10 percent thereafter, under the diagnostic code currently assigned, an increased rating for left retropatellar pain syndrome, claimed as chronic knee pain is not warranted. See Fenderson. IV. Extraschedular Consideration Under 38 C.F.R § 3.321(b)(1), in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be made. The governing norm in an exceptional case 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. See 38 C.F.R § 3.321(b)(1) (2011). The record does not reflect that the Veteran has required any hospitalizations for either knee disability since the grant of service connection. In addition, the record reveals that the Veteran works full time as a telecommunications specialist and there is no indication in the record that his bilateral knee disability markedly interferes with his employment or daily activities, beyond what is contemplated in the rating schedule. Here, the rating criteria reasonably describe the Veteran's symptoms and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER Entitlement to an initial rating in excess of 10 percent for right retropatellar pain syndrome, claimed as chronic knee pain, is denied. Entitlement to an initial compensable rating prior to August 13, 2009 and to a rating in excess of 10 percent thereafter for left retropatellar pain syndrome, claimed as chronic knee pain, is denied. REMAND The Veteran's testimony at the July 2011 hearing and the additional medical records submitted by the Veteran at the hearing indicate that the Veteran's lumbar spine and headache disabilities have increased in severity since the most recent VA examination for rating purposes in August 2009. The Veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the Veteran must be provided a new VA examinations to determine the current severity of his lumbar spine and headache disabilities. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an examination to determine the nature and extent of his current headaches. The claims files should be provided to the examiner for review prior to the examination. The examiner should carefully describe the practical impact of the headaches, their frequency, their duration and intensity, whether they are or are not tantamount to prostrating, and the extent, if any, they have on the Veteran's employment. 2. Afford the Veteran an examination to determine the extent and severity of his lumbar spine disability. The claims files should be provided to the examiner for review prior to the examination. The examiner is requested to state whether the Veteran has had incapacitating episodes requiring bed rest due to his lumbar spine disability. If there are incapacitating episodes prescribed by a physician please note the total duration during the past 12 months. Range of motion testing should also be accomplished. The examination report should address any weakened movement of the lumbar spine, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any limitation of motion. If the Veteran describes flare-ups of pain, the examiner should offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. The examiner should also identify whether the Veteran has muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 3. Upon completion of the above requested development readjudicate the Veteran's claim. The Veteran and his representative should be provided a supplemental statement of the case which includes review of all evidence received since the May 2011 supplemental statement of the case and be afforded the appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs