Citation Nr: 1300652 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 07-09 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. What evaluation is warranted for Osgood-Schlatter disease of the left knee from November 30, 2005? 2. Entitlement to an effective date earlier than November 4, 2011, for the award of service connection for a limitation of left knee flexion due to Osgood-Schlatter disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from August 2004 to November 2005 and January to December 2008. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York. In November 2010, the Board remanded the claim for additional development. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. The issue of entitlement to an earlier effective date for the grant of service connection for a limitation of left knee flexion due to Osgood-Schlatter disease is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. From November 30, 2005 to November 3, 2011, Osgood-Schlatter disease of the left knee was manifested by no more than slight instability. 2. Since November 4, 2011, Osgood-Schlatter disease of the left knee has been manifested by no more than moderate instability. CONCLUSIONS OF LAW 1. From November 30, 2005 to November 3, 2011, the criteria for an evaluation greater than 10 percent for lateral instability due to Osgood-Schlatter disease of the left knee are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). 2. From November 4, 2011, the criteria for 20 percent evaluation for lateral instability due to Osgood-Schlatter disease of the left knee are met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Because service connection, an initial rating, and an effective date have been assigned, the notice requirements of the VCAA, 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements as they relate to the increased rating claims would serve no useful purpose. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations. For the reasons discussed below, the Board finds that the examinations are adequate to make a determination on the claim. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis 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 rating will be assigned. 38 C.F.R. § 4.7. Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Rating factors for a musculoskeletal disorder include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Historically, the Veteran injured his left knee during basic training during his first period of service. He received physical therapy, but continued to have left knee pain. A Physical Evaluation Board discharged him with a diagnosis of symptomatic Osgood-Schlatter disease of the left knee. In an April 2006 rating decision, the RO granted service connection and assigned a noncompensable rating from November 30, 2005, based on limitation of flexion under Diagnostic Code 5260. A VA examination was conducted in July 2006. Later that month, based on the examination findings, VA increased the rating for the left knee to 10 percent, effective November 30, 2005. The evaluation was based on other impairment of the knee under Diagnostic Code 5257, which is used to rate subluxation or lateral instability. 38 C.F.R. § 4.71a. Under Diagnostic Code 5257, a 10 percent disability rating is warranted for slight recurrent subluxation or lateral instability, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. In this case, the Board finds that a 20 percent rating is warranted lateral instability due to left knee disability from November 4, 2011; however, a rating in excess of 10 percent is not warranted prior to that date. A January 2006 private treatment record from Lourdes Hospital reflects that the Veteran fell and landed on his left knee while climbing the stairs at home. He complained of pain, estimated as 5/10 in intensity. On objective examination, there was tenderness and slight swelling over the left patella. There was no tenderness over the lateral or medial collateral ligament. Left knee x-rays showed no acute fracture or dislocation. The impression was left knee pain after a fall, probably secondary to a contusion and strain. A ligament injury could not be ruled out. At a July 2006 VA examination the Veteran complained of constant left knee pain. He stated that he felt as though the joint would give way. On objective examination, there was tenderness with patellar compression. There was good stability, and no limitation of motion. Lachman and McMurray tests were negative. Strength was 5/5. X-rays of the left knee were normal. The diagnosis was Osgood-Schlatter disease. It was opined that the disease was self-limiting and should resolve in time. The Veteran reenlisted in the Army in January 2008. A November 2007 reenlistment examination noted that he was status post left knee injury; however, this condition was not considered disabling. It was noted that the Veteran had been running and road marching without recurrence of left knee pain. In February 2008, he complained of knee pain after falling. There was tenderness to palpation of the anterior knee. In March 2008, magnetic resonance imaging (MRI) showed linear intermediate signal in the posterior horn of the medial meniscus. The impression was nondisplaced meniscus tear versus mucinous degeneration in the posterior horn of the left medial meniscus. Otherwise, the examination was unremarkable. The Veteran continued to complain of left knee pain and giving way. In May 2008, McMurray's test was positive, but there was no ligamentous laxity. The July 2008 report by the Medical Evaluation Board noted complaints of exquisite tenderness to palpation over the tibial tubercle and that the Veteran was unable to do a single leg squat on the left side. There was no laxity to the anterior, posterior, lateral, and medical ligaments. Drawer sign and Lachman's test were negative. McMurray's test was positive. The diagnosis was chronic left knee pain due to Osgood-Schlatter disease and medial meniscal injury. It was opined that the Veteran failed to meet Army retention standards and he was later discharged. The report of a November 4, 2011 VA examination reflects Lachman and posterior drawer tests were negative. Varus/varus stress test revealed 1+ laxity (0 to 5 mm). X-rays of the left knee were unremarkable. The appellant was noted to occasionally use a cane and a brace. The diagnoses were medial meniscus tear, Osgood-Schlatter disease, and a history of stress fracture. The examiner opined that the Veteran had moderate instability in the knee based on history and the examination. The examiner explained that medial lateral instability was noted with valgus/varus pressure on examination and the Veteran's history was consistent with moderate instability. The Veteran reported that he could not get any jobs in construction or law enforcement and was denied a job in corrections. The examiner noted that the Veteran had been unable to perform any jobs that required heavy loads on his knee or prolonged standing. Prior to Veteran's second period of active duty and the February 2008 injury, the evidence preponderates against finding that Osgood-Schlatter disease of the left knee resulted in any recurrent subluxation or lateral instability. As noted above, there were no objective signs of laxity or instability in January or July 2006. Furthermore, although the Veteran reported that he felt as though his knee might give way, there were no reported contemporaneous episodes of actual giving way during this time period. In fact, the Veteran denied knee pain with physical activity during his reenlistment examination in November 2007, and his knee was not considered disabling. Hence, entitlement to a rating higher than 10 percent was not warranted during this time period. The evidence does not show moderate impairment due to factors such as recurrent subluxation or lateral instability. In February 2008, the Veteran fell and reinjured his left knee. Subsequent records show that he was diagnosed as having a meniscal tear in addition to Osgood-Schlatter disease. There was objective evidence of lateral instability, i.e., positive McMurray's tests in May and July 2008. The evidence, however, reflects that the impairment due to instability was no more than slight. In this regard, the July 2008 Medical Evaluation Board report indicated that the Veteran had "good" left knee stability. The first evidence of moderate instability was demonstrated at the November 4, 2011 VA examination. The Board notes that the varus/valgus stress test revealed 1+ laxity, which is indicative of only "slight" impairment; however, the examiner opined that there was "moderate" instability of the left knee. The examiner based this opinion on the examination of the Veteran and his reported history. Thus, the Board finds that the evidence for and against a higher 20 percent rating is in relative equipoise and the Veteran should be afforded the benefit of the doubt. Therefore, the Board finds that a 20 percent rating for moderate instability is warranted from November 4, 2011. A higher, 30 percent rating is not warranted because the objective findings and subjective complaints are not consistent with "severe" impairment due to instability. VA's General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998). Furthermore, separate ratings under Diagnostic Codes 5260 and 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 (2004); 38 C.F.R. § 4.14 (2012). In this case, in a January 2012 rating decision, a separate 10 percent rating was granted for limitation of flexion of the left knee. As will be discussed below, the Veteran filed a notice of disagreement with the effective date assigned for the award, the initial action to place this issue in appellate status. The agency of original jurisdiction, however, has yet to issue a statement of the case. Therefore, this issue is being remanded for additional action and is not yet before the Board for appellate consideration. With respect to other potentially applicable diagnostic codes, there is no evidence of any ankylosis, cartilage removal, limitation of extension, or tibia and fibula impairment. Hence, consideration of Diagnostic Codes 5256, 5259, 5261, and 5262 are not appropriate. 38 C.F.R. § 4.71a. There is evidence that the Veteran sustained a meniscal tear of the left knee, however ,the March 2008 MRI showed that the meniscus tear was nondisplaced. Therefore, consideration of Diagnostic Code 5258, for dislocated cartilage, is also not appropriate. The Board considered the application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. 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. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the Veteran's disability and symptomatology. The Veteran has described symptomatology involving instability and giving way, which is specifically contemplated in Diagnostic Code 5257. Furthermore, Diagnostic Code 5257 provides for higher ratings for instability of the left knee. He has also described pain and limitation of motion, which has been separately evaluated under Diagnostic Code 5260. Hence, the rating criteria clearly contemplate the Veteran's disability picture. They include symptomatology of the type reported by the Veteran and by medical professionals on clinical evaluation. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met. As the disability picture is contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). The Board has also considered the United States Court of Appeals for Veterans Claims' decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, the November 2011 VA examiner indicated that the Veteran's left knee disability impacted his ability to work and that he could not could not perform any jobs that required heavy loads on his knee or prolonged standing. The examiner also noted that the Veteran reported that he could not get any jobs in construction or law enforcement and that he was denied a job in corrections. It is unclear whether the Veteran is currently employed; however, he does not assert, and the evidence does not suggest, that he is unemployable due to this disorder alone. Therefore, the Board does not find that a claim for a total rating based on individual unemployability (TDIU) is reasonably raised by the record. In this case, the Board finds that a 20 percent rating, but no higher, is warranted for lateral instability due to Osgood-Schlatter disease of the left knee from November 4, 2011, and that a rating higher than 10 percent is not warranted at any time prior to that date. In reaching this decision, the Board has favorably applied the benefit-of-the-doubt doctrine; however, the Board finds that the preponderance is against assignment of any higher ratings. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER From November 30, 2005 to November 3, 2011, entitlement to a rating in excess of 10 percent for lateral instability due Osgood-Schlatter disease of the left knee is denied. From November 4, 2011, a 20 percent rating for lateral instability due to Osgood-Schlatter disease of the left knee is granted subject to the law and regulations governing the award of monetary benefits. REMAND In a January 2012 rating decision, VA granted service connection and assigned a 10 percent rating for a limitation of left knee flexion effective November 4, 2011. In February 2012, the Veteran submitted a letter requesting that the decision be made retroactive to his 2008 discharge. The Board interprets this correspondence as a notice of disagreement with the effective date assigned. The United States Court of Appeals for Veterans Claims has held that an unprocessed notice of disagreement should be remanded, not referred, to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: Issue the Veteran a statement of the case addressing the claim of entitlement to an effective date prior to November 4, 2011, for the award of service connection for limitation of flexion due to left knee disability. The appellant is hereby informed that the Board will exercise appellate jurisdiction over this claim only if he files a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs