Citation Nr: 1105872 Decision Date: 02/14/11 Archive Date: 02/28/11 DOCKET NO. 07-19 647 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUES 1. Entitlement to an in excess of 10 percent for injury to the medial meniscus of the left knee. 2. Entitlement to an increased (compensable) evaluation for keratosis of the hands and feet. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from September 1966 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 decision by the RO which, in part, assigned an increased rating to 10 percent for the Veteran's left knee disability; (effective from June 30, 2005, the date of receipt of the claim for increase), and denied a compensable evaluation for the skin disorder of the hands and feet. FINDINGS OF FACT 1. All evidence necessary for adjudication of this claim have been obtained by VA. 2. The Veteran's left knee disability is manifested by pain, arthritis and range of motion from 0 to 122 degrees, without instability, subluxation or other impairment of the knee; functional limitation due to pain, incoordination, fatigability, on repetitive use or during flare-ups is not demonstrated. 3. The Veteran's skin disorder is manifested by dryness and scaling of the left hand with brittle and discolored nails of the left hand and both great toes without skin breakdown, ulcerations, scarring, or disfigurement; systemic therapy is not required and the exposed area and total body surface was less than one percent. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 10 percent for medial meniscus injury of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Part 4, including Diagnostic Codes 5010-5261 (2010). 2. The criteria for a compensable evaluation for keratosis of the hands and feet are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.104, Part 4, Diagnostic Codes 7817-7806 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in July 2005. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran was examined by VA on multiple occasions during the pendency of the appeal and was scheduled for a travel Board hearing at the RO in March 2009, but he cancelled his hearing and indicated that he did not wish to be rescheduled. Neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The Veteran's service treatment records and all VA and private medical records have been obtained and associated with the claims file. To the extent that the notice in this case is deemed to be deficient, based on his contentions and the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail. Under the circumstances of this case, the Board finds that the Veteran is not prejudiced by moving forward with a decision on his claims for an increased ratings, and that VA has complied with the procedural requirements of 38 U.S.C.A. §§ 5104, 7105(d), and 38 C.F.R. § 3.103(b), and the holdings in Dingess/Hartman, 19 Vet. App. 473 (2006) and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Increased Ratings - In General In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2010). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 enervation, or other pathology, or it 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 seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. Left Knee Disability Initially, it should be noted that the Board has reviewed all the evidence of record, including but not limited to the Veteran's contentions, the VA and private treatment records from 2004 to the present, and the findings from the VA examinations conducted June 2006 and October 2007. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, it is not required to discuss each and every piece of evidence in a case. The relevant evidence including that submitted by the Veteran will be summarized where appropriate. The Veteran contends that he has chronic left knee pain and difficulty climbing stairs, walking or standing for any prolonged period of time, and believes that the 10 percent evaluation assigned does not reflect the current severity of his knee disability. Regarding the Veteran's contentions, while he is competent to offer evidence as to the visible symptoms or manifestations of his disabilities, his belief as to its current severity under pertinent rating criteria or the nature of the service-connected pathology is not probative evidence. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Veteran's left knee disability is rated 10 percent disabling under Diagnostic Codes (DC) 5010-5261 for traumatic arthritis of the left knee with limitation of motion to a noncompensable degree. Traumatic arthritis, is rated under Diagnostic Code (DC) 5003, which specifies that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). 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 or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The knee is a major joint. 38 C.F.R. § 4.45 Under DC 5261, limitation of extension of a leg warrants a noncompensable evaluation if extension is limited to 5 degrees, a 10 percent evaluation if extension is limited to 10 degrees, a 20 percent evaluation if extension is limited to 15 degrees, a 30 percent evaluation if extension is limited to 20 degrees, a 40 percent evaluation if extension is limited to 30 degrees, and a 50 percent evaluation if extension is limited to 45 degrees. 38 C.F.R. § 4.71, DC 5261. Under DC 5260, limitation of flexion of a knee warrants a noncompensable evaluation if flexion is limited to 60 degrees, a 10 percent evaluation if flexion is limited to 45 degrees, a 20 percent evaluation if flexion is limited to 30 degrees and a 30 percent evaluation if flexion is limited to 15 degrees. 38 C.F.R. § 4.71, DC 5260. The normal range of motion for a knee joint is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2010). In this case, the Veteran's complaints and the clinical and diagnostic findings on the medical reports of record were essentially the same throughout the pendency of this appeal and were manifested principally by chronic pain, crepitus, swelling, and some limitation of motion in the left knee. When examined by VA in June 2006, the Veteran reported that his knee symptoms had improved since his surgery for a torn meniscus at a private facility in June 2005, but that he still had some aching in the joint. The Veteran does not take any medications for his knee and denied any flare-ups or problems with the activities of daily living. On examination, there was slight crepitus and a little varus deformity, but no swelling or instability in the left knee. Extension/flexion was from zero to 125 degrees without pain, and there was no additional limitation of motion on repetitive movement. X-ray studies revealed moderate arthritic changes with narrowing of the joint space, particularly on the medial side with some spurring in the patellofemoral compartment. The impression was traumatic arthritis of the left knee. The examiner commented that during flare-ups, the Veteran could experience additional limitation of motion in the knee due to pain, but that he could not estimate of the additional range of motion loss without resorting to speculation. The Veteran's complaints and the clinical and diagnostic findings on VA examination in October 2007 were essentially unchanged. There was no effusion or instability and range of motion in the knee was from zero to 122 degrees with pain at the end of motion. There was no additional limitation of motion on repetitive movement. The examiner indicated that the Veteran could experience additional limitation of motion in the knee due to pain, but that he could not offer an opinion without resorting to speculation. He did note, however, that the Veteran's arthritic condition appeared to have worsened since the prior examination and that he was a candidate for knee replacement. The Veteran reported that he was planning to have a total knee replacement at the end of the year. Parenthetically, the Board notes that the evidentiary record does not show that the Veteran underwent knee replacement, nor has the Veteran informed VA that any such surgery was performed. The evidentiary record also includes numerous VA and private clinical records showing treatment for various maladies, including left knee pain from 2004 to 2008. The few reports which showed left knee treatment did not include any additional clinical or diagnostic findings. A VA MRI in May 2007 revealed a diffuse disc bulge with foraminal narrowing at L5-S1, and generalized facet arthritis throughout the spine. Private reports showed that the Veteran had four injections of Hyalgan in both knees on consecutive months from August to November 2007. When seen for his second set of injections in September 2007, the Veteran reported that his knee pain had improved and that his mobility was better. The examiner indicated that range of motion of the left knee had increased. With regard to an evaluation in excess of 10 percent for the left knee disability, the Veteran is not shown to have flexion limited to 30 degrees or less, or any limitation of extension. Therefore, a rating in excess of 10 percent based on limitation of motion under DC 5260 or 5261 is not assignable. The Veteran does have arthritis and some limitation of motion in the left knee (flexion to 122 degrees), which is to a noncompensable degree. Therefore, under DC 5003, the appropriate rating is 10 percent, and no higher. Other potentially applicable rating codes which may provide a basis for assigning a higher evaluation include DC 5256, but that requires ankylosis of the knee joint, which is not shown. Under DC 5257, a 10 percent evaluation is assigned for slight recurrent subluxation or lateral instability. A 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability, and 30 percent for severe symptoms. Here again, however, the record fails to show any instability or subluxation. DC 5258 provides for a 20 percent evaluation for dislocated, semilunar cartilage with frequent episodes of locking, pain and effusion into the joint, but aside from his discomfort, these manifestations have not been described. The Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the Board has considered the Veteran's assertions that he has chronic pain on prolonged standing, walking or when climbing stairs. However, the objective findings from the VA examinations and outpatient reports did not show any instability or subluxation of the left knee and only mild restricted range of motion, with pain only at the end point of motion (122 degrees) on VA examination in 2007. While the VA examiner indicated that the Veteran may experience some additional loss of motion on flare-ups, he could not offer any opinion as to the degree of additional loss without resorting to speculation. In this case, the record does not reflect additional functional impairment commensurate with the criteria necessary for an evaluation in excess of 10 percent. The Board recognizes that the Veteran has left knee pain on a daily basis. However, the medical reports simply do not show any additional functional loss of use due to pain or on repetitive use of the left knee to any measurable degree. Absent this, the Board finds that the level of functional impairment is adequately compensated by the 10 percent evaluation currently assigned. Applying the appropriate diagnostic codes to the facts of this case, the objective assessment of the Veteran's present impairment from his left knee disability does not suggest that he has sufficient symptoms so as to a warrant an evaluation in excess of 10 percent. Accordingly, the Board finds that the 10 percent evaluation currently assigned accurately depicts the severity of the condition during the pendency of this appeal, and there is no basis for a higher staged rating. See Fenderson v. West, 12 Vet. App. 119 (1999). Skin Disorder As an initial matter, the Board notes that during the pendency of this appeal, VA amended the rating criteria for the evaluation of scars, which became effective on October 23, 2008. However, it was specifically noted that this amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. A veteran whom VA rated before such date under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805 may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review. The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations regarding effective dates. See 73 Fed. Reg. 54708 (Sept. 23, 2008). In this case, the Veteran filed his claim in June 2005, prior to the amendment to the rating criteria, and he has not requested a review under the new criteria. As such, his pending claim currently on appeal will be reviewed under the criteria in effect prior to October 23, 2008. The Veteran contends that he has chronic pain and flaking of the skin on his hands two to three times a month, and believes that his skin disorder should be assigned a compensable evaluation. The Veteran's skin disorder is rated noncompensably disabling under DC 7817-7806. Under DC 7817, for exfoliative dermatitis, a noncompensable evaluation is assigned for any involvement of the skin and no more than topical therapy required during the past 12 months. A 10 percent evaluation is warranted with any involvement of the skin, and; systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light), or UVB (ultraviolet-B light) treatments, or electron beam therapy required for a total duration of less than six weeks during the past 12 months. Additional higher evaluations under this provision of the rating code are warranted with more extensive periods of the systemic therapies (discussed above). Under DC 7806, for dermatitis/eczema, a zero percent rating is assigned where the skin disability covers less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and no more than topical therapy was required over the past 12-month period. A 10 percent rating is assigned where the skin disability covers at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent of the exposed areas affected, or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned when the disorder covers 20 to 40 percent of his entire body or 20 to 40 percent of exposed areas affected, or by systemic therapy being required for a total duration of six weeks or more, but not constantly, during the past 12-month period. In this case, the objective findings on VA examinations in June 2006 and October 2007 were essentially the same and showed only mild symptoms on the palm of the left hand, manifested by dry and scaly skin. In 2006, the Veteran reported that the skin condition was constant and had not progressed beyond involvement of his left hand, and that he used an ointment on his hands daily, with mild results. The Veteran denied any problems with his feet. On examination, the palm of the left hand was dry and scaly, but otherwise the skin on both hands were clear of any inflammation or rash, and there was no edema, deformity, skin breakdown, ulcerations, scarring, or disfigurement. All finger nails of the left hand were partially discolored and brittle; the right hand and finger nails were normal in appearance. The examiner indicated that the skin disorder involved less than one percent of the affected exposed area and total body surface. The Veteran's complaints and the clinical findings regarding his hands on VA examination in October 2007 were essentially identical to those described on the 2006 VA examination report. Examination of the Veteran's feet showed no skin rash or breakdown, edema, deformity, ulcerations, scarring, or disfigurement. Both great toenails were thick, brittle, and discolored. The examiner indicated that the skin disorder involved less than one percent of the affected exposed area and total body surface. The impression included mild dermatitis of the palm of the left hand and mild onychomycosis of both great toes and the fingernails of the left hand. The examiner commented that the Veteran's skin disorder of the left hand was consistent with a contact dermatitis, and that there was no evidence of any lesions associated with keratosis. The VA and private outpatient notes did not show any complaints or treatment for any skin problems during the pendency of the appeal. A private note showed that the Veteran was seen for a rash on his right forearm from contact with poison ivy in March 2005. In this case, the Veteran does not claim nor do the medical reports of record show treatment with any type of systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA or UVB treatments, or electron beam therapy at anytime during the pendency of this appeal. As such, a higher evaluation under DC 7817 is not warranted. Similarly, the medical evidence does not show any symptoms, or manifestations which would warrant the assignment of a compensable rating under DC 7806, based on surface area affected. As noted above, the VA examinations showed only minimal residuals of the Veteran's skin disorder affecting primarily the palm of his left hand. Moreover, the estimated percentage of the affected area and body surface area was less than one percent. Therefore, the criteria for a compensable evaluation under DC 7806 are not met. As there is no other potentially applicable diagnostic code that would provide for a higher evaluation, the Board finds that the noncompensable evaluation currently assigned for the Veteran's skin disorder is entirely appropriate and accurately depicts the severity of the condition for the entirety of the rating period on appeal. Accordingly, an increased evaluation is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Finally, the Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) (2010). In this case, the Board finds that the manifestations of the Veteran's left knee disability and skin disorder are consistent with the schedular criteria, and there is no objective evidence that any manifestations related to the service-connected disabilities are unusual or exceptional. In view of this, referral of this case for extraschedular consideration is not in order. See Thun v. Peake, 22 Vet. App. 111 (2008); Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). ORDER An increased evaluation for medial meniscus injury of the left knee is denied. An increased evaluation for keratosis of the hands and feet is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs