Citation Nr: 1114351 Decision Date: 04/12/11 Archive Date: 04/21/11 DOCKET NO. 04-16 362A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for service-connected left knee chondromalacia with synovitis, evaluated as 10 percent disabling prior to April 21, 2005, and as 20 percent disabling thereafter. REPRESENTATION Appellant represented by: Kenneth LaVan, attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from February 1976 to February 1979. This appeal to the Board of Veterans Appeals (Board) originally arose from a January 2004 rating action that denied a rating in excess of 10 percent for left knee chondromalacia with synovitis. The Veteran appealed the issue of entitlement to an increased rating. In July 2005, the RO granted the claim, to the extent that it increased the rating for the left knee chondromalacia with synovitis to 20 percent, with an effective date of April 21, 2005. However, since this increase did not constitute full grants of the benefits sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In April 2007 and February 2010, the Board remanded the claim for additional development. In March 2009, the Board denied the claim. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In September 2009, while his case was pending at the Court, the VA's Office of General Counsel and appellant's representative filed a Joint Motion requesting that the Court vacate the Board's March 2009 decision. That same month, the Court issued an Order vacating the March 2009 Board decision. In January 2007, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO. FINDINGS OF FACT 1. Prior to April 21, 2005, the Veteran's service-connected left knee chondromalacia with synovitis is shown to have been manifested by complaints that included pain, stiffness, locking, and swelling, but not flexion limited to 30 degrees or extension limited to 15 degrees, and no instability. 2. As of April 21, 2005, the Veteran's service-connected left knee chondromalacia with synovitis is shown to have been productive of complaints of pain, stiffness, and swelling, but not flexion limited to 15 degrees or extension limited to 20 degrees, and no instability. CONCLUSIONS OF LAW 1. Prior to April 21, 2005, the criteria for a rating in excess of 10 percent for service-connected left knee chondromalacia with synovitis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.59, Diagnostic Codes 5256, 5258, 5260, 5261, 5262 (2010). 2. As of April 21, 2005, the criteria for a rating in excess of 20 percent for service-connected left knee chondromalacia with synovitis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.59, Diagnostic Codes 5256, 5260, 5261, 5262 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating The Veteran asserts that he is entitled to higher rating for his service-connected left knee chondromalacia with synovitis. A review of the transcript of his hearing, held in January 2007, shows that he argues that he has severe pain and swelling, and that he cannot bend down, climb ladders, or kneel, at his job as a mechanic, or put weight on his knee. He asserted that he had to use a cane. As an initial matter, in February 2010, the Board remanded this claim. The Board directed that a copy of a January 2009 VA examination report be obtained, as well as copies of the complete records of all orthopedic surgery outpatient treatment and evaluation of the left knee at the Miami, Florida VAMC, and of all PM & RS consultations at the Broward County VA outpatient clinic, dated from September 2008 to the present time. The Board further directed that if any of the identified records sought were not obtained, that the RO should notify the appellant and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. A large number of reports, dated between 2006 and 2010, were subsequently obtained from the Miami VAMC, to include PM & RS consultations at the Broward County VA medical facility. In December 2010, a Supplemental Statement of the Case was issued in which the Veteran was notified of that although a VA progress note, dated January 2, 2009, had been obtained, there was no evidence of a January 2009 VA examination report. Under the circumstances, the Board finds that there has been substantial compliance with the its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board further notes that a December 2009 notice proposed to reduce the Veteran's 20 percent rating to 10 percent. However, a March 2010 rating decision confirmed and continued the 20 percent rating, and the 20 percent rating remains in effect. Disability ratings are assigned under the criteria set forth in Diagnostic Codes (DCs) in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Disabilities must be viewed historically and the disability must be described in terms of the person's function under the ordinary conditions of daily life including employment. 38 C.F.R. §§ 4.1, 4.2, 4.10. Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b). The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2010). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2010). In December 1989, the RO granted service connection for left knee chondromalacia with synovitis, evaluated as 10 percent disabling. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2007). In October 2000 and May 2002, the RO denied claims for increased ratings. In each case, there was no appeal, and the RO's decisions became final. Id. In May 2003, the Veteran filed a claim for an increased rating. In January 2004, the RO denied the claim. The Veteran appealed, and in July 2005, the RO granted the claim, to the extent that it increased the rating for the left knee chondromalacia with synovitis to 20 percent, with an effective date of April 21, 2005. With regard to the history of the disability in issue, see 38 C.F.R. § 4.1 (2010), the Veteran's service treatment reports show that he was diagnosed with chondromalacia, with no reports of trauma. As for the post-service evidence, a June 2000 VA examination report contained diagnoses that included patellofemoral syndrome. An associated X-ray report noted that there was no evidence of fracture or dislocation, no significant degenerative changes, and no significant interval change since X-rays in 1996. The Veteran's service-connected left knee chondromalacia with synovitis has been rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260. A. Prior to April 21, 2005 Under DC 5260, a 10 percent evaluation is warranted where knee flexion is limited to 45 degrees. A 20 percent evaluation is warranted where knee flexion is limited to 30 degrees. In addition, the following diagnostic codes are also relevant to the claim: Under 38 C.F.R. § 4.71a, DC 5261, a 20 percent evaluation is warranted where knee extension is limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension or slight flexion between 0 degrees and 10 degrees. Under 38 C.F.R. § 4.71a, DC 5258, dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, is rated as 20 percent disabling. The relevant time period is from May 2002 (i.e., one year prior to the date of receipt of the claim) to April 21, 2005. See 38 C.F.R. § 3.400(o)(2) (2010). The relevant post-service medical evidence consists of VA and non-VA reports. The only recorded ranges of motion during the time period in issue are as follows: a VA examination report, dated in August 2003, shows that the Veteran's left knee had extension to 0 degrees, and flexion to 140 degrees. A private treatment report, dated in August 2004, notes that he had "full extension" (specific degrees of motion were not provided). The Board finds that a rating in excess of 10 percent under DC 5260 is not warranted. There is no evidence to show that the Veteran's left knee flexion is limited to 30 degrees. In fact, the criteria for even a compensable rating under DC 5260 are not shown to have been met. Accordingly, the Board finds that the criteria for a rating in excess of 10 percent under DC 5260 have not been met. As for the possibility of a higher rating under another diagnostic code, Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), a rating in excess of 10 percent is not warranted under DC 5261, as the evidence does not show that during the time period in issue, the Veteran had left knee extension is limited to 15 degrees. There is no evidence of left knee ankylosis for a higher rating under DC 5256, or a dislocated left semilunar cartilage for a higher rating under DC 5258. With regard to DC's 5260 and 5261, a higher evaluation is not warranted for functional loss. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); VAGCOPPREC 9- 98. In this case, the Veteran is not shown to have a limitation of motion for even a compensable rating under either DC 5260 or DC 5261, and it therefore appears that the basis of the RO's 10 percent rating is functional loss. The medical evidence does not contain evidence of such symptoms as neurological impairment, incoordination, loss of strength, or any other findings that would support a higher rating on the basis of functional loss due to pain. In this regard, a private April 2003 magnetic resonance imaging (MRI) study contains an impression noting tears of the anterior and posterior horns of the medial and lateral meniscus, and small retropatellar joint effusion. The report further notes that the anterior and posterior cruciate ligaments, and the medial and lateral collateral ligaments, are intact, and that the quadriceps and patella tendons are unremarkable. The August 2003 VA examination report shows that the Veteran complained of pain upon kneeling, and that he was often required to kneel in his job as a mechanic. He also reported knee swelling, and knee pain upon walking five over blocks. He had extension to 0 degrees, and flexion to 140 degrees, without pain. He walked without a limp, and that he had no difficulty performing the activities of daily living. The examiner noted the MRI evidence of ligamental tears, but stated that the clinical significance of these was doubted "since they do not match history and physical examination." Private treatment reports, dated in 2004, show a number of treatments for knee pain, with an August 2004 report noting complaints of pain, buckling, instability and swelling. On examination, there was a small effusion of the left knee, and medial joint line tenderness. In summary, even taking into account the complaints of pain and the evidence of ligament tears, the medical evidence is insufficient to show that the Veteran has such symptoms as atrophy, loss of strength, neurological impairment or incoordination, and the Board finds that, when the ranges of motion in the left knee are considered together with the evidence of functional loss due to left knee pathology, the evidence does not support a conclusion that the loss of motion in the left knee more nearly approximates the criteria for a rating in excess of 10 percent prior to April 21, 2005 under either DC 5260 or DC 5261, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. In reaching this decision, the Board has considered a statement from J.E., M.D., dated in April 2003, which states that the Veteran has tears of the medial and lateral meniscus, as well as small retropatellar joint effusion, and that, "The above anatomical findings are consistent with a 20 percent disability suggesting [the] need for surgical intervention." However, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). To the extent that the physician asserts that the findings "are consistent with" a higher rating, his statement is conclusory in nature; it is not accompanied by a sufficient explanation rationale, nor does it cite to evidence of functional impairment, or other findings, which warrant a higher rating. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has therefore determined that the evidence is insufficient to show that a rating in excess of 10 percent is warranted prior to April 21, 2005. B. As of April 21, 2005 The Board initially notes that VA treatment reports show that in July 2007, the Veteran underwent a partial left lateral meniscectomy with partial synovectomy. The postoperative diagnosis was left lateral meniscus tear. In October 2007, the RO granted a temporary total (i.e., 100 percent) disability rating under 38 C.F.R. § 4.30, from the period from July 5, 2007 to August 31, 2007. The RO assigned a 20 percent rating for the right knee as of September 1, 2007. Therefore, the increased rating claim is moot for the period from July 5, 2007 to August 31, 2007. Except as noted above for the period during which the Veteran's temporary total disability rating was in effect, the relevant medical evidence consists of VA and non-VA reports, dated between April 21, 2005 and 2010. VA progress notes show a number of treatments for complaints of left knee pain, and contain findings on the left knee ranges of motion which show that the Veteran's left knee had extension that ranged between -10 to 0 (zero) degrees, and flexion from between 90 to 130 degrees. In addition, this evidence contains four findings noting a full range of motion ("FROM"), two findings of "full extension," and two findings of a decreased range of motion (all with specific degrees of motion not provided). See VA progress notes, dated in October 2006, November 2007, February 2008, September and November of 2009, and January and May of 2010; private report, dated in August 2004. A VA examination report, dated in April 2005 (performed on April 21, 2005), shows that the Veteran's left knee had flexion to 0 degrees, and flexion to 120 degrees. A VA examination report, dated in October 2007, shows that the Veteran's left knee had flexion to 0 degrees, and flexion to 120 degrees. A VA examination report, dated in May 2008, shows that the Veteran's left knee had flexion to 0 degrees, and flexion to 110 degrees. A VA examination report, dated in October 2009, shows that the Veteran's left knee had flexion to 0 degrees, and flexion to 120 degrees. The Board finds that the criteria for a rating in excess of 20 percent for the left knee under either DC 5260 or 5261 have not been met. The aforementioned recorded ranges of motion for the Veteran's left knee show that he is shown to have had no less than -10 degrees of extension (presumably, as there are no findings of hyper-extension or instability, this represents a loss of 10 degrees of extension; in any event, they do not evidence a sufficient loss of motion for a higher rating under DC 5260), and flexion to no less than 90 degrees. Furthermore, there is no evidence of ankylosis of the left knee, or a malunion of the left tibia and fibula, and the criteria for a rating in excess of 20 percent for the left knee under DCs 5256 and 5262 are not shown to have been met. Accordingly, the Board finds that the criteria for a rating in excess of 20 percent under DC's 5256, 5260, 5261, and 5262 are not shown to have been met as of April 21, 2005, and that the claim must be denied. With regard to DC's 5260 and 5261, a higher evaluation is not warranted for functional loss. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca; VAGCOPPREC 9-98. In this case, the medical evidence does not contain evidence of such symptoms as neurological impairment, incoordination, loss of strength, or any other findings that would support a higher rating on the basis of functional loss due to pain. In this regard, the VA progress notes contain two findings that of 3+/5 strength, one finding of 4/5 strength, and four findings of 5/5 strength. See VA progress notes, dated in July and August of 2007; December 2008; February (two reports), March and July of 2010. A January 2007 MRI report contains an impression noting a horizontal tear of the anterior horn of the lateral meniscus with a small parameniscal cyst, and low-grade chondromalacia in the medial and lateral compartments. A July 2009 X-ray report contains an impression noting "maintained" medial, lateral, and patellofemoral joint compartments, with minimal hypertrophic spurring of the patella. A November 2009 MRI report contains an assessment of left knee lateral meniscal tear, and medial meniscus degenerative changes. The April 2005 VA examination report shows that the Veteran complained of constant left knee pain, with no flare-ups, aggravated by squatting and bending. He reported occasional swelling, and difficulties performing at his job as a mechanic, as he could not be on his feet for very long. He reported taking Motrin for control of his symptoms. It was noted that he was independent in ambulation and the activities of daily living (including feeding, bathing, grooming and dressing), and that he did not use an assistive device. On examination, strength was 4/5, limited by pain. A sensory examination was intact to lower extremity dermatomes. Gait was antalgic. Repetitive motion times five produced pain, fatigue, weakness and lack of endurance. The impression noted meniscal tears of the left knee of questionable service-related character, and patellofemoral syndrome. The October 2007 VA examination report shows that the Veteran complained of daily knee pain, with stiffness and loss of mobility, that had not been improved by surgery in July. The report indicates that he reported aggravation of his symptoms when kneeling and standing at his job as a mechanic, and that he denied giving way, instability, weakness, incoordination, decreased speed of joint motion, dislocation or subluxation, locking, effusions, inflammation, or an effect on joint motion. He reported that he took Motrin for control of his symptoms, that he could stand 15 to 30 minutes, and that he could walk 1/4 of a mile. On examination, gait was antalgic. There was no objective evidence of pain with active motion. There was no ankylosis. The Veteran claimed to have lost five weeks of work during the past 12-month period, due to left knee pain and surgery. Effects on usual daily activities were characterized from "none" (feeding, bathing, dressing, toileting, grooming, and driving) to "mild" (recreation) to "severe" (chores, shopping) to "prevents" (exercise, sports). There were no significant effects on his occupation. The diagnosis was left knee chondromalacia. The May 2008 VA examination report shows that the Veteran complained of pain, weakness, stiffness, swelling, giving way, and locking, with flare-ups after walking 20 feet. He stated that he had to kneel a lot at his job as a mechanic, and that he had to use a cane. On examination, there was pain on motion. Repetitive motion had no additional affect on range of motion, pain, fatigability, coordination, weakness or endurance. An estimate of any further decrease in range of motion upon flare-ups could not be provided, as this would have been speculative. The diagnoses were status post arthroscopic surgery and partial anterior horn lateral meniscectomy, left knee, and chondromalacia of the patella. The October 2009 VA examination report indicates that the Veteran complained of pain, stiffness, and giving way, with locking several times a week, and repeated effusion. He indicated that he could stand 15 to 30 minutes, and walk 1/4 of a mile. On examination, gait was antalgic. There was no patellar abnormality, but meniscus abnormality, evidence of a tear, and pain on active motion were noted. There were no additional limitations of motion after three repetitions of range of motion. A January 2009 X-ray was noted to be normal, with no interval change since 2007. The report indicates that no time was lost from work during the previous 12 months, but that there were "significant effects" on his occupation. Effects on usual daily activities were characterized from "none" (feeding, toileting and grooming) to "mild" (chores, shopping, recreation, traveling, bathing, dressing, and driving) to "moderate" (exercise, sports). The diagnosis was left knee lateral meniscal tear, status post arthrotomy repair with residual pain. The Board notes that a statement from a VA physician, R.R., M.D., dated in January 2009, states that the Veteran would need to be out of work for a week, however, an associated note (VA Form 10-2382) indicates that this was due to "acute calf strain." In summary, a limitation of motion for even a compensable rating under DC's 5260 and 5261 are not shown to have been met, and it therefore appears that the basis of the RO's 20 percent rating is functional loss. Therefore, even taking into account the complaints of pain and the evidence of ligament tears, the medical evidence is insufficient to show that the Veteran has such symptoms as atrophy, loss of strength, neurological impairment or incoordination, such that when the ranges of motion in the left knee are considered together with the evidence of functional loss due to left knee pathology, the evidence does not support a conclusion that the loss of motion in the left knee more nearly approximates the criteria for a rating in excess of 20 percent as of April 21, 2005 under either DC 5260 or DC 5261, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. The Board has therefore determined that the evidence is insufficient to show that a rating in excess of 20 percent is warranted as of April 21, 2005. C. Conclusion With regard to the entire time period in issue on appeal, the Board notes the following: separate ratings under 38 C.F.R. § 4.71a, DC Code 5260 and DC 5261 may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005). In this case, however, as set forth above, none of the medical evidence shows that the Veteran's left knee extension is limited to the extent necessary to meet the criteria for a separate compensable rating. 38 C.F.R. § 4.71, Plate II, DC 5261. Additionally, to assign two, separate compensable ratings solely based on painful motion under two separate diagnostic codes (i.e., under Diagnostic Codes 5260 and 5261) would be in violation of the rule of pyramiding. See 38 C.F.R. § 4.14; VAOPGCPREC 9-04. Accordingly, the claim must be denied. Also with regard to the entire time period in issue on appeal, the VA General Counsel has held that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). However, the medical evidence shows that the Veteran has repeatedly been found not to have instability. See e.g., VA examination reports, dated in August 2003, April 2005, October 2007, May 2008, and October 2009; VA progress notes, dated in August 2007, October 2008, January and March of 2009, January 2010; private treatment report, dated in August 2004. As the medical evidence shows that the Veteran does not have any left knee instability, the Board has determined that the evidence is insufficient to show that a separate rating is warranted for instability of the left knee. Given the foregoing, the Board finds that the evidence is insufficient to show recurrent subluxation or lateral instability of the left knee under DC 5257. In making this determination, the Board finds that since DC 5257 is not predicated on loss of range of motion, 38 C.F.R. §§ 4.40 and 4.45, as interpreted in DeLuca v. Brown, 8 Vet. App. 202, 204-206 (1995); do not apply. Johnson v. Brown, 9 Vet. App. 7, 9 (1996). In deciding the Veteran's increased rating claim, the Board has considered the determination in Hart v Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation at any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability in issue, such that an increased evaluation is warranted. II. The Veterans Claims Assistance Act of 2000 (VCAA) 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). In July 2003, May and July of 2007, and October 2009, VCAA notices were issued. 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); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant 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's service treatment reports, and VA and non-VA medical records, have been obtained, and the Veteran has been afforded five examinations. The appellant and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and they have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Prior to April 21, 2005, a rating in excess of 10 percent for service-connected left knee chondromalacia with synovitis is denied. As of April 21, 2005, a rating in excess of 20 percent for service-connected left knee chondromalacia with synovitis is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs