Citation Nr: 1300224 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 07-06 640A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent for a left knee disability, described as patellofemoral pain syndrome. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to February 1990 and from October 1990 to April 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which, in pertinent part, granted entitlement to service connection for patellofemoral pain syndrome, left knee, with a 10 percent disability rating assigned, effective March 31, 2005. The Columbia, South Carolina, RO now maintains jurisdiction in this case. In February 2012, the Board remanded the case to the RO for further development and adjudicative action. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT The Veteran's left knee disability is manifested by pain on motion; extension is limited to at most 10 degrees; flexion is limited to at most 130 degrees; and locking, lateral instability, or recurrent subluxation has not been demonstrated. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent disabling for the Veteran's left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, Part 4, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5260, 5299-5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duties to Notify and Assist This appeal arises from disagreement with the initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated, additional VCAA 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). The Board also finds that there has been compliance with the VCAA assistance requirements. The record in this case includes service treatment records, VA examination reports and medical opinions, VA 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. 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was provided VA examination in July 2005, and a medical opinion was provided in October 2005. The Veteran was provided another VA examination in January 2011. The Board remanded the claim in February 2012 to obtain the Veteran's vocational rehabilitation records and submit them for review to the January 2011 VA examiner and obtain an updated medical opinion. In August 2012 pursuant to the Board's February 2011 remand, the examiner reviewed the Vocational Rehabilitation records and submitted an updated medical opinion. The Appeals Management Center thereby complied with the Board's remand instructions. In view of the foregoing, the Board has fulfilled the duty to notify and assist to the extent possible; the Board can consider the merits of this appeal without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Laws and regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability there from, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain, or flare-ups. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Where a disability is not listed in the rating schedule, VA will assign a rating by analogy to a diagnostic code that contemplates a closely related disease or injury. 38 C.F.R. § 4.20 (stating that when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). The Veteran's disability is diagnosed as patellofemoral syndrome. There is no diagnostic code pertaining specifically to that disability. The RO determined that the most closely analogous diagnostic code pertaining to the Veteran's patellofemoral pain syndrome, left knee, is 38 C.F.R. § 4.71a, DC 5261, which pertains to limitation of extension of the knee. The Board will also consider whether a higher rating is warranted under other codes for rating knee disabilities. The Veteran's left knee disability has been rated as 10 percent disabling under Diagnostic Code 5261. Under Diagnostic Code 5261, limitation of extension of the leg to 45 degrees warrants a 50 percent disability rating, to 30 degrees warrants a 40 percent disability rating, to 20 degrees warrants a 30 percent disability rating, to 15 degrees warrants a 20 percent disability rating, to 10 degrees warrants a 10 percent disability rating, and to 5 degrees warrants a noncompensable disability rating. Separate ratings for the same symptomatology under different diagnoses would constitute pyramiding and is prohibited by 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Under Diagnostic Code 5260, limitation of flexion of the leg to 15 degrees warrants a 30 percent disability rating, to 30 degrees warrants a 20 percent disability rating, to 45 degrees warrants a 10 percent disability rating, and to 60 degrees warrants a noncompensable disability rating. Under Diagnostic Code 5256, ankylosis of the knee is rated at 60 percent disabling when extremely unfavorable, in flexion at an angle of 45 degrees or more, at 50 percent disabling when in flexion between 40 and 45 degrees, at 40 percent disabling when in flexion between 10 and 20 degrees, and at 30 percent disabling when favorable angle in full extension, or in slight flexion between 0 and 10 degrees. Under Diagnostic Code 5257, impairment of the knee is rated at 30 percent disabling for severe recurrent subluxation or lateral instability, at 20 percent disabling for moderate recurrent subluxation or lateral instability, and at 10 percent disabling for slight recurrent subluxation or lateral instability. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint is rated at 20 percent disabling. Under Diagnostic Code 5259, symptomatic removal of semilunar cartilage warrants a 10 percent disability rating. Diagnostic Code 5010 for Arthritis, due to trauma, substantiated by X-ray findings, refers to Diagnostic Code 5003 for degenerative arthritis. Diagnostic Code 5003 states 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. When 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. In the absence of limitation of motion, the Veteran should be rated at 10 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups and 20 percent disabling with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5256-61. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). More recently, the General Counsel held that separate rating could also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Background The Veteran was treated during service for bilateral patellofemoral pain syndrome. The Veteran was afforded a VA examination in July 2005. The Veteran reported no medical treatment; medications prescribed, or knee braces worn for the knee disability during the past two years. He complained of constant symptoms of aching and throbbing knees which were worse with climbing stairs. He reported no specific injuries to the knees. The examiner noted that the Veteran was employed driving a bus three hours a day. The examiner observed that the Veteran's gait was strong and steady and his knees appeared normal. Drawer and McMurray's tests were normal bilaterally. The range of motion (ROM) of his knees was described as normal, bilaterally. There was an audible crack and mild discomfort with squatting. ROM was not additionally limited after repetitive use. There was no pain evidenced on motion; additional limitation due to fatigue, weakness, lack of endurance or incoordination bilaterally. The Veteran was able to perform all activities of daily living with the exception that he was no longer able to play basketball. X-rays revealed the knee joints were adequately maintained. There was minimum calcification at the insertion of the quadriceps tendons and patellar ligaments. The diagnosis was bilateral patellofemoral pain syndrome. In October 2005, the examiner who had conducted the July 2005 examination noted that service treatment records revealed treatment for bilateral patellofemoral pain syndrome. It was also noted that the VA examination had revealed a popping sensation with discomfort described as a little jolt which was directly related to activity. The pain was aggravated by the need to use a clutch while driving his truck. The examiner opined that the Veteran was able to work and quoted the Veteran as stating that, "I have full range of motion." He denied stiffness, subluxation, or giving way sensation. The examiner noted that the Veteran's gait was strong and steady and his posture was normal. He used no assistive devices. While he denied problems walking on his heels, the examiner noted complaints of pain while walking on tip toes in his left knee. Active ROM was flexion 0-130 degrees. Passive ROM was 10-132 degrees without crepitus or effusion. There was pain with firm pressure to the left patella. Drawer, varus valgus, Lachman and McMurray signs were all negative. The examiner diagnosed left knee patellofemoral syndrome which originated during service. She noted that the Veteran only had symptoms during overuse/exertion which was however not limiting and did not require medication. The Veteran was afforded a VA examination in January 2011. The Veteran reported moderate to severe aching pain with numbing and tingling in his anterior patella left knee. He reported popping, stiffness, locking, and minimal swelling. He denied flare ups. He was a student currently. There was no history of hospitalization, trauma, or neoplasm of the left knee. There were no constitutional signs of arthritis, or incapacitating episodes related to arthritis. He could stand for approximately one hour and used no assistive devices. There were no functional impairments due to the left knee disorder noted. Examination revealed no abnormal weight bearing. ROM was 0 to 130 degrees with extension to 0 degrees. There was no pain or additional limitation of motion with repetition. There was no ankylosis. The diagnosis was a normal examination and left knee arthralgia. In August 2012, the VA examiner who provided the Veteran's January 2011 examination reviewed additional evidence received subsequent to the Board's February 2012 remand. The examiner noted that she was asked to review the additional evidence and opine as to any impact that it might have on any aspect of the January 2011 examination. The examiner noted that the additional evidence did not change the results of the original examination. In addition because of radiological studies and ROM results the left knee condition did not impede physical or sedentary employment. The file also contains VA treatment records which, in part, document complaints of musculoskeletal pains, including pain with regards to the Veteran's left knee. A January 2006 treatment note indicates that he complained of left knee pain which significantly interfered with his activities. The clinician noted that while crepitus was noted, the examination was otherwise unremarkable. X-rays were negative; there was no picture of a meniscus problem or osteoarthritis; and, the left knee did not appear inflammatory. VA Vocational Rehabilitation records indicate that from approximately 2007 to 2011, the Veteran was a full time college student studying accounting as part of a rehabilitation program. In August 2010 it was note that he was not employed. A report of contact dated in September 2012 shows that the Veteran was an employee at a VA RO. Analysis To receive an increased disability rating for limitation of motion under Diagnostic Codes 5260 or 5261, the evidence must show flexion limited to approximately 30 degrees or extension limited to approximately 15 degrees. The VA examiners have not reported such limitation, even with consideration of functional factors. Even when considering the additional limitation due to pain and other factors with repetition, the Veteran's range of motion did not meet the requirements for ratings higher than 10 percent under Diagnostic Codes 5260 or 5261. DeLuca v. Brown, 8 Vet. App. 202 (1995). In fact, the most severe limitation was reportedly shown on the 2005 examination when passive extension was limited to 10 degrees. He has never been shown to have a compensable limitation of flexion. He has had no additional limitation of motion due to functional factors at any time during the rating period. 38 C.F.R. §§ 4.40, 4.45, 4.59. Considering the other Diagnostic Codes for disability of the left knee; to receive a disability rating under Diagnostic Code 5257, the evidence must show recurrent subluxation or lateral instability. There is no evidence of either contained in the record. The VA examiners explicitly found that there was no give way or instability. To receive a disability rating under Diagnostic Code 5256, the evidence must show ankylosis of the knee in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. There is no evidence of ankylosis of the left knee. The Veteran's range of motion for all intent has remained close to normal throughout the rating period. Therefore, Diagnostic Code 5256 does not enable a higher evaluation here. To receive a disability rating under Diagnostic Code 5258, the evidence must show dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The Veteran does not currently have dislocated semilunar cartilage as evidenced by X-ray and examination findings. Therefore, Diagnostic Code 5258 is not applicable. He has also not undergone removal of the cartilage, as evidenced by the reports that he has not undergone any surgery. A rating for arthritis under Diagnostic Code 5010 would not provide a basis for a higher rating inasmuch as the that code provides for rating on the basis of limitation of motion and the disability is currently rated on that basis. Extraschedular Pursuant to 38 C.F.R. § 3.321(b) (1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b) (1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The symptoms of the Veteran's disability consist of reports of pain and limitation of motion. These symptoms are contemplated by the rating criteria. Thus, referral for consideration of an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1). Total Rating for Compensation Based on Individual Unemployability (TDIU) TDIU is an element of all claims for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2008). The Federal Circuit has clarified that TDIU is raised in an increased rating claim where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the Veteran has either been employed or a full time college student during the entire period since the effective date of service connection. He has not reported unemployability, nor is there other evidence to that effect. The Board; therefore, finds that entitlement to TDIU is not raised. ORDER Entitlement to an initial rating in excess of 10 percent for a left knee disability is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs