Citation Nr: 1117650 Decision Date: 05/09/11 Archive Date: 05/17/11 DOCKET NO. 06-34 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a higher initial rating for right knee strain, currently evaluated as noncompensable (0 percent). 2. Entitlement to a higher initial rating for right elbow strain, currently evaluated as noncompensable (0 percent). REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2003 to October 2010, with three months prior active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, that granted service connection for right knee strain and right elbow strain with a 0 percent disability rating. The Veteran testified at a Board hearing at the RO in December 2007 before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. FINDINGS OF FACT 1. Prior to April 10, 2010, the Veteran's right knee strain was manifested by range of motion from 0 degrees extension to 90 degrees flexion with pain and swelling that does not additionally limit range of motion findings. 2. From April 10, 2010, the Veteran's right knee strain is manifested by extension limited to 10 degrees and flexion to 100 degrees with pain and swelling that does not additionally limit range of motion findings. 3. The Veteran's right elbow strain is manifested by range of motion from 0 degrees extension to 145 degrees flexion with pain that does not additionally limit range of motion findings. CONCLUSIONS OF LAW 1. Prior to April 23, 2010, the criteria for a compensable initial disability rating for right knee strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5261 (2010). 2. The criteria for a higher initial disability rating of 10 percent for right knee strain have been met from April 23, 2010. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5261 (2010). 3. The criteria for a higher initial disability rating in excess of 0 percent for right elbow strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5206 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002), and implemented by regulation, 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1). The appeals for a higher initial rating for right knee strain and right elbow strain arise from a disagreement with the initial evaluations following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the Veterans Law Judge 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. Here, during the hearing, the Veterans Law Judge (VLJ) noted the elements of the claim that were lacking to substantiate the claim for a compensable initial rating for right knee strain and right elbow strain. The representative and the VLJ asked questions to draw out the state of the Veteran's disabilities. In addition, the VLJ requested information regarding any current treatment and symptoms as well as the Veteran's ability to function in his current employment. No additional pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for higher initial disability ratings. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board also finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes VA examination reports, VA treatment records, private treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded VA examinations in October 2005 and May 2007. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations, and the examiners offered the necessary findings. The Board finds the examinations to be sufficient and adequate for rating purposes. Thus, further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. Higher Initial Rating - Laws and Regulations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time, and different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). It should be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Higher Initial Rating for Right Knee Strain The Veteran's service-connected right knee strain is rated for limitation of motion. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, the limitation of flexion of the leg to 15 degrees warrants a 30 percent rating, to 30 degrees warrants a 20 percent rating, to 45 degrees warrants a 10 percent rating, and to 60 degrees warrants a noncompensable (0 percent) rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, the limitation of extension of the leg to 45 degrees warrants a 50 percent rating, to 30 degrees warrants a 40 percent rating, to 20 degrees warrants a 30 percent rating, to 15 degrees warrants a 20 percent rating, to 10 degrees warrants a 10 percent rating, and to 5 degrees warrants a noncompensable (0 percent) rating. 38 C.F.R. § 4.71a. After a review of all the evidence in this case, lay and medical, the Board finds that the Veteran's right knee disability first manifested to a compensable level on April 23, 2010. Prior to April 23, 2010, the Veteran's right knee strain did not manifest with limitation of flexion of the leg to 45 degrees or limitation of extension of the leg to 10 degrees. In an October 2005 VA examination, the Veteran's range of motion was measured from 0 degrees extension to 90 degrees flexion. The Veteran was able to perform repetitive motion of the right knee and the examiner found that the Veteran's range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance. In the May 2007 VA examination, the Veteran's range of motion was measured from 0 degrees extension to 150 degrees flexion. The examiner noted mild pain from 140 to 150 degrees flexion. The examiner found no additional limitation with repetitive use due to pain, fatigue, weakness, or lack of endurance. The Board acknowledges that the Veteran reported pain and swelling of the right knee. Treatment records show objective evidence pain and swelling. The VA examiners have addressed these factors in considering range of motion findings. Specifically, the Board notes that the October 2005 and May 2007 findings specifically addressed the criteria set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's range of motion was not found to be additionally limited by pain, incoordination, fatigue, weakness, or lack of endurance on repetitive use. 38 C.F.R. §§ 4.40, 4.45. Therefore, applying the DeLuca criteria, the Board finds that the Veteran's right knee strain did not manifest with limitation of flexion of the leg to 45 degrees or limitation of extension of the leg to 10 degrees prior to April 23, 2010. The file contains an April 23, 2010 VA treatment record with range of motion findings for the right knee. The examiner noted range of motion findings measured from 10 degrees extension to 100 degrees flexion. He reported the Veteran's complaints of throbbing and radiating pain related to his right knee. Based on these findings, the Veteran's right knee disability first met the requirements for a 10 percent disability rating on April 23, 2010, with a limitation of extension to 10 degrees. The record does not indicate that a disability rating in excess of 10 percent is warranted after April 23, 2010. The evidence does not show that the Veteran's right knee disability manifested with limitation of flexion to 45 degrees or limitation of extension to 15 degrees. The Veteran was experiencing pain at the time of the April 2010 examination. The range of motion findings were provided with knowledge of the Veteran's pain. The Board finds that the examiner sufficiently addressed the criteria in DeLuca v. Brown, 8 Vet. App. 202 (1995) by acknowledging the Veteran's pain when providing range of motion findings. There is no evidence that the Veteran's range of motion was additionally limited by increased pain, incoordination, fatigue, weakness, or lack of endurance on repetitive use. 38 C.F.R. §§ 4.40, 4.45. Therefore, a disability rating in excess of 10 percent from April 23, 2010, is not warranted. The Board has considered other possibly applicable diagnostic codes, to include Diagnostic Code 5256 requiring ankylosis of the knee, Diagnostic Code 5257 requiring recurrent subluxation or lateral instability, and Diagnostic Code 5258 requiring dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. The evidence does not support a separate rating under any of these codes. No credible evidence, medical or lay, shows ankylosis, instability, subluxation, or dislocated semilunar cartilage. The Board acknowledges that the Veteran reported that his knee gives out when he's trying to rush. The Board notes however that the Veteran has failed to report this during any medical examination or treatment. Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Additionally, the Veteran only noted instability in the VA hearing when attempting to obtain compensation for his right knee. Such statements made for VA disability compensation purposes are of lesser probative value than his previous complaints of symptoms made for treatment purposes. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). Finally, the May 2007 examination revealed no clinical sign of instability of the right knee and the April 2010 examination showed no evidence of ligamentous laxity. When weighing the medical and lay evidence, the Board finds that the Veteran does not have lateral instability. Based on the analysis above, the Board finds that the criteria for a 10 percent rating are met from April 23, 2010. Prior to April 23, 2010, a preponderance of the evidence is against the claim for higher initial disability rating than 0 percent for right knee strain for any period of rating on appeal. Therefore, a higher initial disability rating prior to April 23, 2010 is not warranted. Higher Initial Rating for Right Elbow Strain The Veteran's service-connected right elbow strain is rated for limitation of motion. Normal ranges of motion of the elbow are 0 degrees in extension, 145 degrees in flexion, 80 degrees of pronation, and 85 degrees of supination. 38 C.F.R. § 4.71, Plate I. The Veteran is right-handed. Under Diagnostic Code 5206, limitation of flexion of the major forearm to 45 degrees warrants a 50 percent rating, to 55 degrees warrants a 40 percent rating, to 70 degrees warrants a 30 percent rating, to 90 degrees warrants a 20 percent rating, to 100 degrees warrants a 10 percent rating, and to 110 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5207, limitation of extension of the major forearm to 110 degrees warrants a 50 percent rating, to 100 degrees warrants a 40 percent rating, to 90 degrees warrants a 30 percent rating, to 75 degrees warrants a 20 percent rating, to 60 degrees warrants a 10 percent rating, and to 45 degrees warrants a 10 percent rating. 38 C.F.R. § 4.71a. After a review of all the lay and medical evidence of record, the Board finds that the Veteran's right elbow disability at no time during the initial period on appeal manifested to a compensable level. The Veteran's right elbow disability was not shown to include limitation of flexion to 100 degrees or limitation of extension to 45 degrees. During the December 2007 hearing, the Veteran complained of pain, swelling, and limitation of motion. He reported icing and resting his elbow when the swelling occurs. During an October 2005 VA examination, the Veteran's right elbow looked entirely normal and demonstrated no laxity. The Veteran's range of motion was measured to 0 degrees extension and to 145 degrees flexion with 80 degrees of pronation and 85 degrees supination. The examiner specifically noted that the Veteran is capable of repetitive motion of the right elbow and upon repetitive motion the Veteran's range of motion is not additionally limited by pain, fatigue, weakness, or lack of endurance. In February 2006, the Veteran visited the emergency room with complaints of swelling and pain in his right elbow. The examiner prescribed Motrin and rest and told the Veteran to return if not improved within two weeks. The Veteran did not return. During the May 2007 VA examination, the Veteran's range of motion was measured to 0 degrees extension and 150 degrees flexion with 80 degrees supination and 80 degrees pronation. The Veteran's range of motion of the right elbow was not additionally limited by pain, fatigue, weakness, or lack of endurance. The examiner specifically noted that physical inspection revealed no functional impairment that would affect the Veteran's employment or his activities of daily living. The Board finds that the Veteran's right elbow strain does not meet the criteria for a compensable rating for limitation of motion. At no time during the initial period on appeal was the right elbow symptomatology shown to include limitation of flexion to 100 degrees or limitation of extension to 45 degrees. The Board notes that the October 2005 and May 2007 VA examinations specifically addressed the criteria set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's range of motion was not found to be additionally limited by increased pain, incoordination, fatigue, weakness, or lack of endurance on repetitive use. 38 C.F.R. §§ 4.40, 4.45. Applying the DeLuca criteria, the Veteran's symptomatology does not lead to a higher rating. The Board has considered other possibly applicable diagnostic codes, to include Diagnostic Code 5205 requiring ankylosis of the elbow and Diagnostic Code 5209 requiring joint fracture with marked cubitus varus or cubitus valgus deformity or with ununited fracture of the head of the radius. 38 C.F.R. § 4.71a. The evidence does not support a separate rating under either of these codes. No credible evidence, medical or lay, shows ankylosis of joint fracture. Based on the analysis above, the Board finds that a preponderance of the evidence is against the claim for higher initial disability rating than 0 percent for right elbow strain for any period of rating on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The United States Court of Appeals for Veterans Claims has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the Veteran reported pain, swelling, and limitation of motion related to his right knee and right elbow strains. As seen in the analysis above, the Board has considered these aspects of the Veteran's disability, and finds that the rating schedule (Diagnostic Codes 5206, 5207, 5260, 5261) adequately provides for ratings based on these symptoms or impairments. Specifically, the Board has considered any additional functional limitation of motion due to pain, fatigue, or lack of endurance upon repetitive use as a result of the right knee and elbow disabilities. Under 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, pain, weakened movement, excess fatigability and incoordination, which may cause additional limitation of motion or joint function, are made a part of the schedular rating criteria. The Board notes that the VA examiners discussed the effect of pain and repetition in determining the Veteran's range of motion measurements, and the Board has also considered the Veteran's lay statements addressing his pain and limitation of motion. As the Board has considered all facets of the Veteran's right knee and right elbow strain in its schedular analysis, the Board finds that the Rating Schedule adequately measures and contemplates these aspects of his service-connected disabilities. As the rating schedule is adequate to rate the Veteran's service-connected right knee strain and right elbow strain, referral for extraschedular consideration is not warranted. ORDER Entitlement to a 10 percent disability rating from April 23, 2010, for right knee strain is granted. Entitlement to a disability rating in excess of 0 percent for right elbow strain is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs