Citation Nr: 1128372 Decision Date: 07/29/11 Archive Date: 08/04/11 DOCKET NO. 07-37 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for right knee retropatellar pain syndrome, currently evaluated as 10 percent disabling. 2. Entitlement to a total rating based on unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from November 1997 to November 2004. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of the VA Regional Office (RO) in St. Petersburg, Florida, that denied service connection for pseudofolliculitis barbae, an evaluation in excess of 10 percent for retropatellar pain syndrome, and a total rating based on unemployability due to service-connected disability. The case was remanded for further development in March 2010. In pertinent part, the March 2010 Remand ordered a VA examination to determine the current severity of the Veteran's right knee disability. This was accomplished in June 2010. Accordingly, the Board finds that there has been substantial compliance with the directives of the March 2010 Remand in this case, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Service connection for pseudofolliculitis barbae was awarded by rating action dated in September 2010. This is the full grant of that benefit sought on appeal and is no longer for appellate consideration. The issue of entitlement to service connection for a total rating based on unemployability due to service-connected disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. Right knee retropatellar pain syndrome is manifested by periarticular pathology that includes pain and tenderness to palpation. 2. The Veteran's right knee has extension of zero degrees, flexion to 120 degrees, and no clinical indications of instability, ankylosis, arthritis, malunion or non-union. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for right knee retropatellar pain syndrome are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information as to the disability rating and the effective date to be assigned if the claim is granted. Id. at 486. An error in notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Neither the Veteran nor his representative has alleged any prejudicial or harmful error in notice or lack thereof, and none is shown. The Veteran was provided with notice prior to the initial unfavorable decision on the claim of an increased rating right knee disability in October 2006, supplemented by correspondence in May and June 2010. Those letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Notification that includes information pertaining to a disability rating and an effective date for the award has also been sent to the Veteran. In this case, however, the claim is denied. Therefore, no rating or effective date will be assigned. Neither the Veteran nor his representative has alleged any deficiency of notice. For these reasons, the Board finds that the Veteran was sent adequate notice with respect to the claim. The Board also finds that all necessary development has been accomplished. The claims folder contains extensive VA treatment records dating from 2004 to 2010. The Veteran indicates in the record that he has not seen any other providers outside of VA. He has been afforded VA examinations over the course of the appeal, most recently in June 2010, which are adequate for compensation purposes. The appellant's statements in the record and the whole of the evidence have been carefully considered. The Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. He has been provided with ample opportunity to submit evidence and argument in support of his claim and to participate effectively in the processing of such. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Accordingly, the claim of entitlement to an increased rating for right retropatellar pain syndrome is ready to be considered on the merits. The Veteran asserts that the symptoms associated with his service-connected right knee disorder are more severely disabling than reflected by the currently assigned 10 percent disability evaluation and warrant a higher rating. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. § 4.1 (2010). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59 (2010). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (2010). 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. See 38 C.F.R. § 4.7 (2010). A claim for an increased rating for right knee disability was received in October 2006. In this regard, the evidentiary time frame for consideration is up to one year prior to receipt of the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's right retropatellar pain syndrome is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5260 (2010). Limitation of motion of the knee is evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. When flexion of the knee is limited to 45 degrees, a 10 percent rating may be assigned. Flexion limited to 30 degrees warrants a 20 percent evaluation. A 30 percent rating may be assigned when flexion of the leg is limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. When extension of the knee is limited to 10 degrees, a 10 percent evaluation may be assigned. When extension is limited to 15 degrees, a 20 percent evaluation may be assigned. When limited to 20 degrees, a 30 percent rating is warranted. If extension is limited to 30 degrees, a 40 percent evaluation is warranted. A 50 percent evaluation may be assigned when extension of the leg is limited to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran was afforded a VA joints examination in January 2007. He stated that since a fall in the military in 1998, he had had right knee pain that hurt most with kneeling and going up and down stairs. He also reported some clicking and feelings of right knee giving way. The appellant related that his symptoms were growing progressively worse, for which he was taking medication. It was noted that the Veteran needed no assistive aid for walking, and had no functional limitations on walking or standing. He denied episodes of dislocation, subluxation, locking, or effusion. The Veteran reported weekly severe flare-ups of joint pain that could last for hours. Physical examination disclosed normal gait and no evidence of abnormal weightbearing. Active and passive range of motion was from zero to 140 degrees with pain reported at 130 degrees. There was no additional limitation of motion on repetitive use. No ankylosis was observed. The examiner further noted that there was painful movement, but no crepitus, clicks, snaps or grinding. It was felt that giving way sensation was consistent with a meniscal abnormality, that there was patellar abnormality with tenderness at insertion of the patella, and that the Veteran had bumps consistent with Osgood-Schlatter disease. An X-ray of the right knee was interpreted as showing tibial tubercle fibrous union (Osgood-Schlatter). Following examination, a diagnosis of right knee patella tendon insertional tendonitis, questionable meniscal tear, was rendered. It was determined that this engendered significant general occupational effects, including pain, had a moderate effect on chores and exercise, a severe effect on sports, and no effect on shopping. VA outpatient clinic notes in January 2008 reflect that when seen primarily for low back pain, the Veteran complained of right knee pain. It was noted that there was no joint swelling or increased warmth. An assessment of right knee internal derangement was provided. The Veteran underwent a VA joints examination in June 2010. He complained of right knee giving way, instability, pain, stiffness, weakness, incoordination, decreased joint motion, daily or more often episodes of locking, tenderness, and weekly flare-ups of pain of moderate severity. He stated that knee symptoms were precipitated by prolonged weightbearing activities and alleviated by immobilization and nonweightbearing. The Veteran related that he was unable to stand for more than a few minutes and could not walk more than a few yards. It was noted that he had used a knee sleeve for the past four to five months, and took medication for pain. On physical examination, gait was observed to be antalgic. The Veteran was noted to have bony joint enlargement, tenderness and guarding of movement throughout the entire range of movement. It was noted that bumps were consistent with Osgood-Schlatter's disease. There was no clinical evidence of crepitation, clicks or snaps, grinding, instability, or patellar or meniscus abnormality. The McMurray's test was positive. Right knee flexion was from zero to 120 degrees. Extension was zero degrees. There was objective evidence of pain following repetitive motion, but no additional limitations after three repetitions of range of motion. There was no joint ankylosis. Thigh circumference was the same for both lower extremities. No visible or measured atrophy of the right thigh was observed as compared to the left. Pain was reported on internal and external rotation. The examiner noted that the Veteran reported an inordinate amount of pain on examination, as well as antalgia and guarding that were not concordant with the relative lack of abnormal objective physical findings. An X-ray of the right knee obtained in April 2010 was interpreted as showing fragmentation of the tibial tuberosity and thickening of the patellar tendon that was could have represented either remote Osgood-Schlatter disease or old avulsion injury. There was normal patella position and no degenerative joint disease. It was reported that the right knee's impact on occupational functioning included decreased mobility, problems with lifting and carrying, decreased strength, and lower extremity pain. The effects on usual daily activities were described as none to severe for sports, exercise and recreation. The appellant asserts that he has symptoms that include pain, swelling, stiffness, locking, instability and activity restrictions occasioned by the service-connected right retropatellar pain syndrome for which a higher rating is warranted. However, in weighing the appellant's statements, treatment records and VA examination reports, the Board finds that the evidence is against an evaluation in excess of 10 percent for right knee disability. Limitation of Flexion The record reflects that the RO has awarded a 10 percent disability evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 for limitation of flexion. This disability rating contemplates periarticular pathology productive of painful motion. It is also consistent with flexion of the knee limited to 45 degrees. The Board points out, however, that the evidence shows that the appellant has had functional flexion of between 120 to 140 degrees during the appeal period. Clearly, therefore, the RO has based the 10 percent disability rating on periarticular pathology consistent with no more than 45 degrees of functional flexion. It is shown that appellant has symptoms that include tenderness, and reported complaints of locking, crepitus, instability and swelling at times emblematic of right knee articular and periarticular pathology. Painful, unstable or malaligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint, 38 C.F.R. § 4.59 (2010) for which a 10 percent disability rating is in effect. However, in order to warrant a 20 percent disability evaluation, the disorder must approximate the functional equivalent of limitation of flexion to 30 degrees due to any factor. DeLuca, 8 Vet. App. at 204-7. Therefore, even considering the reduced flexion noted on the most recent VA examination in June 2010, the appellant would still not be entitled to more than a 10 percent disability evaluation on this basis. Here, there is no lay or medical evidence that flexion of the knee is functionally limited to less than 60 degrees. The most probative evidence establishes that he has significant remaining motion as demonstrated by evidence of flexion from 120 to 140 degrees on examination. Therefore, an evaluation in excess of 10 percent is not warranted based on limitation of flexion. Limitation of Extension VA General Counsel Precedent Opinion (VAOPGCPREC) 09-04 (Sept. 17, 2004) holds that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to adequately compensate for functional loss associated with injury to the leg. When extension of the knee is limited to 10 degrees, a 10 percent evaluation may be assigned. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. The objective evidence reflects that the service-connected right knee disability is currently manifested by extension of zero degrees which is within normal limits. Therefore, a separate 10 percent disability rating may not be assigned on the basis of extension. The Board finds that there is no objective or subjective evidence indicating that extension is functionally limited to 10 degrees or less due to any factor, to include pain on motion, weakness or excess fatigability. Therefore, a separate compensable evaluation for right knee extension is not warranted. Instability The Board observes that the Veteran complains of right knee instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2010). VA General Counsel has issued two opinions pertinent to claims of higher evaluations for knee disabilities which hold that limitation of motion and instability of the knee may be evaluated separately under separate Diagnostic Codes provided additional disability is shown. See VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-98 (Aug. 14, 1998). In this regard, review of the evidence over the appeal period discloses no objective evidence of subluxation or laxity of collateral ligaments on passive and active movement of the right knee. When examined in January 2007 and June 2010, it was determined that the Veteran had no clinical instability. Although the appellant states that he wears a knee brace, this does not by itself denote knee instability. Rather this must be considered in the context of the evidence as a whole that shows no clinical indications of instability. In view of such, Diagnostic Code 5257 is unavailing of a separate rating for the right knee based on a finding of instability. To the extent that the appellant asserts that he is entitled to a higher evaluation based on right knee instability, the Board has carefully considered his contentions and testimony in full. A layperson is competent to describe what comes to him through the senses. See Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In this regard, the Veteran may assert that the symptoms associated with right knee include instability. However, the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Although the appellant asserts that his service-connected right knee is unstable, there has been no clinical finding of such on any examination. The Board finds that there is no significant evidence of right knee instability, and concludes that the observations of skilled professionals indicating lack of instability are more probative than his nonspecific lay statements. Functional loss due to pain The appellant's report of right knee pain and flare-ups has been considered. Additionally, in assessing the level of severity of a disability, VA considers the functional impairment due to pain, weakness, fatigability, and incoordination. See DeLuca, 8 Vet. App. at 204-7; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board finds in this instance, however, that the right knee has not resulted in any functional impairment beyond that contemplated by the current disability evaluation. See 38 C.F.R. §§ 4.40, 4.45. The record reflects that the appellant has right knee motion that approaches normal findings. There is no substantial evidence for findings of loss of speed, incoordination, weakness, fatigability and lack of endurance. Although the appellant reports activity limitations because of the right knee, he ambulates without any assistive device, such as a cane or walker. In this regard, the Board points out that on VA examination in June 2010, the examiner alluded to some degree of symptom exaggeration by noting the appellant's inordinate report of symptomatology, including pain, antalgia and guarding, that were not in accord with the relative lack of abnormal objective physical findings. The Board thus finds that the complaints of pain and any associated functional loss are adequately contemplated by the current disability rating. Alternate Diagnostic Codes The Board has also considered whether a higher disability evaluation may be awarded under any other potentially appropriate diagnostic code pertaining to the knee. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the evidence demonstrates no arthritis, ankylosis, or malunion or nonunion of the tibia and fibula. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256, 5262. Therefore, a higher evaluation under these Diagnostic Codes is not warranted. Extraschedular Consideration Finally, the Board has also considered whether a higher rating for right knee disability is warranted on an extraschedular basis. The potential application of 38 C.F.R. § 3.321(b) (1) (2010) has been considered. However, the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." In this regard, the Board is of the opinion that there has been no showing by the Veteran that the service-connected right knee disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization. The Board thus finds that the rating assigned is precisely that contemplated for this disability. See Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran has not demonstrated such a degree of disability so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the criteria for referral for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) (1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Accordingly, an evaluation in excess of 10 percent for service-connected right knee retropatellar syndrome is denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER An evaluation in excess of 10 percent for right retropatellar pain syndrome is denied. REMAND The Veteran asserts that his service-connected disabilities cause him to be unable to secure or maintain gainful employment and that he is unemployable. A total disability rating may be assigned where the combined rating for a veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2010). In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). Service connection is in effect for degenerative joint disease of the lumbar spine, rated 20 percent disabling, right retropatellar pain syndrome, rated as 10 percent disabling, mood disorder, claimed as depression, rated as 10 percent disabling, right side radiculopathy, rated as 10 percent disabling, postoperative epididymectomy, rated as noncompensably disabling, and pseudofolliculitis barbae, rated as noncompensably disabling. A combined disability evaluation of 40 percent is in effect for service-connected disability. 38 C.F.R. § 4.27 (2010). In view of the above, the Veteran does not currently meet the percentage requirements for TDIU under 38 C.F.R. § 4.16(a), but VA policy is to grant TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). However, the Board is prohibited from assigning TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). The August 2009 VA examiner opined that at that time, it appeared that the Veteran was unable to engage in sedentary and/or physical labor to earn an average income. However, this finding was not addressed in the Supplemental Statement of the Case, and the issue of TDIU was not referred to the VA Director of Compensation and Pension for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). On Remand, this must be accomplished. Accordingly, the case is REMANDED for the following actions: 1. Refer the case to the VA Director of Compensation and Pension for consideration of entitlement to a total rating based on unemployability due to service-connected disability under the provisions of 38 C.F.R. § 4.16(b). 2. If the benefit sought remains denied, issue a Supplemental Statement of the Case, which must include consideration of entitlement to TDIU on an extraschedular basis under 38 C.F.R. § 3.321. Thereafter, return the case to the Board, if in order. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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. 2010). ______________________________________________ J. M. MACIEROWSKI Acting Veterans Law Judge, Board of Veterans Appeals Department of Veterans Affairs