Citation Nr: 1303735 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-34 418 ) 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 left knee chondromalacia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from November 1999 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for left knee chondromalacia, and assigned an initial 10 percent rating, effective July 14, 2008, the date VA received the Veteran's claim for service connection. The Veteran has appealed with respect to the propriety of the initially assigned rating. In her August 2009 substantive appeal, the Veteran requested a Board hearing; also in August 2009 correspondence, she requested a local RO hearing before a Decision Review Officer (DRO). In October 2009 documentation, it was noted that the Veteran failed to report to her scheduled DRO hearing. Moreover, in April 2010 correspondence, the Veteran withdrew her request for a Board hearing. Therefore, there remains no outstanding hearing request. FINDING OF FACT Since the award of service connection, the Veteran's left knee chondromalacia has resulted in painful motion with functional loss equal to flexion of the left knee to no worse than 100 degrees and extension to no worse than zero degrees, without instability or subluxation, ankylosis, cartilage dislocation or removal, impairment of the tibia or fibula, or genu recurvatum. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for left knee chondomalacia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5260 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for her left knee disability from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for her left knee disability was granted and an initial rating was assigned in the December 2008 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records from the VA Medical Center (VAMC) in Columbia, South Carolina, have been obtained and considered. Moreover, the Veteran's electronic file has also been reviewed and there are no additional treatment records added to the file. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Furthermore, in October 2008 and May 2009, the Veteran was provided VA examinations in connection with her claim, the reports of which are of record. The examination reports contain sufficient evidence by which to evaluate the Veteran's left knee chondromalacia in the context of the rating criteria. Additionally, the Board notes that reexaminations will generally be required if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. See 38 C.F.R. § 3.327(a). In the Veteran's case, the evidence does not indicate that there has been a material change in her left knee chondromalacia. Therefore, the most recent VA examination is an adequate evaluation of the Veteran's disability and the mere passage of time does not require a reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Board notes that the Veteran's representative contends that the most recent May 2009 VA examination of the Veteran was not conducted with the benefit of reviewing of the Veteran's claims file, and therefore the examination is inadequate for rating purposes. See March 2010 Representative statement, in lieu of VA Form 646. The Board notes, however, even if the claims file has not been available, the Court in Mariano v. Principi, 17 Vet. App. 305, 311-12 (2003), held that scientific tests (range of motion measurements in that case) are not conclusions drawn by a VA examiner that would be affected by review of the claims file. As a result, the Court concluded that the failure to review the Veteran's claims file did not undermine the objective (range of motion) findings recorded by the VA examiner; these findings were considered valid despite flaws in the record. Id. A review of the Veteran's claims file, while desirable, was not necessary to the successful evaluation of the Veteran's claim. Therefore, a remand for another examination is not necessary for the claim. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. II. Analysis Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial evaluations assigned, consideration of the medical evidence since the effective date of the awards of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The effective date of the award of service connection for left knee chondromalacia is July 14, 2008. Since the award of service connection, the Veteran's left knee disability has been evaluated as 10 percent disabling for painful limited motion of the left knee under Diagnostic Code 5260, which pertains to the limitation of flexion of the leg. 38 C.F.R. § 4.71a. A noncompensable rating is warranted if flexion is limited to 60 degrees; a 10 percent rating is warranted if flexion is limited to 45 degrees; a 20 percent rating is warranted if flexion is limited to 30 degrees; and a 30 percent rating is warranted if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The knee may also be rated under limitation of extension of the leg. A noncompensable rating is warranted if extension is limited to 5 degrees; a 10 percent rating is warranted if extension is limited to 10 degrees; a 20 percent rating is warranted if extension is limited to 15 degrees; a 30 percent rating is warranted if extension is limited to 20 degrees; a 40 percent rating is warranted if extension is limited to 30 degrees; and a 50 percent rating is warranted if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71 (Plate II). Separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; 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. Johnson v. Brown, 9 Vet. App. 7 (1996). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran underwent a VA examination of her left knee in October 2008. She reported experiencing constant, moderate pain with intermittent locking, instability, and swelling. She indicated that the left knee disability interferes with her employment as a substitute teacher, namely, that she has difficulty with the stair climbing, squatting, and weight bearing. The Veteran reported that she utilizes a knee brace, however, such is not very helpful. Physical examination of the left knee revealed no swelling, effusion, or ligament instability. There was no tenderness to palpation, however, there was grade 1 mild crepitus. Range of motion of the left knee was from zero to 122 degrees with pain. The examiner stated that there was no pain on motion or change in range of motion during repetitive movement. The examiner indicated that there was no additional limitation with repetitive movement. The diagnosis was mild chondromalacia of the left knee. Records from the Columbia VAMC show regular treatment for complaints of left knee pain during the rating period on appeal. The records include a December 2008 physical therapy consultation that documents the Veteran's left knee range of motion from zero to 120 degrees, a positive McMurray's test, effusion and tenderness. Such also show her complaints of swelling, increased pain with movement, and buckling. The remaining records do not contain range of motion measurements or examinations as comprehensive as the VA compensation examinations. Another VA compensation examination was conducted in May 2009. The Veteran reported symptoms of constant pain aggravated by walking and standing, as well as prolonged sitting. She reported locking and swelling of the knee as well as instability to the extent that her knee has given out several times resulting in falls. The Veteran reported that her employment was affected in that she had difficulty bending over to talk to and pick up the children. She reported that she occasionally utilizes a knee brace. On examination of the left knee, there was no effusion or ligamentous laxity. McMurray sign was negative; there was diffuse tenderness to palpation; there was no crepitus; there was no erythema, warmth to touch, or bony deformity. Extension of the left knee was to zero degrees and flexion was to 100 degrees. The examiner stated that there was no decrement due to pain or fatigue following repetitive use on examination. X-rays from January 2009 were noted to have shown a left Baker cyst; and mild degenerative joint disease of the left knee. The diagnoses were mild degenerative joint disease of the left knee and left Baker cyst. In consideration of this evidence since the award of service connection, the Board concludes that an initial rating in excess of 10 percent is not warranted for left knee chondromalacia. In this regard, the current 10 percent rating is assigned under Diagnostic Code 5260 for painful motion of the left knee with some limitation. At no time since the award of service connection does the evidence show that the Veteran had flexion limited to approximately 60 or 45 degrees or extension limited to approximately 5 or 10 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The evidence contained in the VA examination reports shows that the Veteran has full extension of the left knee, to zero degrees. Although flexion of the left knee has been less than normal, as it was measured to 100 degrees, even a zero (noncompensable) percent level has not been shown despite some limited motion. This is so even with consideration of painful motion and other factors. The VA examiners indicated that there was no additional pain, loss of motion, or fatigability during repetitive testing. While the evidence tends to show that the Veteran does experience some painful motion, it does not result in a higher rating unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. In reaching this conclusion, the Board has considered the Veteran's subjective complaints of swelling, pain, and locking; however, such do not result in functional loss beyond painful, limited motion. Thus, while the Veteran does not meet the criteria for even a zero percent rating based on limitation of flexion, since there has been at least some limited and painful flexion, a 10 percent rating is warranted per 38 C.F.R. § 4.59, which has already been assigned. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the painful motion provisions of 38 C.F.R. § 4.59 are not limited solely to claims involving arthritis of a joint). Extension of the left knee has been normal, and a separate rating for painful extension is not warranted because to assign two separate ratings based upon painful motion would be pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition). The Board notes that, under Diagnostic Code 5257, which pertains to recurrent subluxation and lateral instability of the knee, a 10 percent rating is assigned for slight recurrent subluxation or lateral instability, a 20 percent rating is assigned for moderate recurrent subluxation or lateral instability, and a 30 percent rating is assigned for severe recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board has also considered whether the Veteran is entitled to a separate rating under Diagnostic Code 5257; however, the Board finds no objective evidence of subluxation or instability in the left knee. In this regard, the Board acknowledges that, at her May 2009 VA examination, the Veteran reported that she occasionally experiences some instability; however, as a layperson, she is not competent to diagnose internal instability or subluxation. In this regard, while she is competent to report that her knee feels unstable or gives way, there is no indication that she possesses the requisite knowledge to administer or interpret specialized testing that would reveal instability or subluxation. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, the VA examiner, a medical professional, found that there was no laxity in the left knee. Based on the foregoing, the objective medical evidence shows that the Veteran's left knee is stable without instability or subluxation. Accordingly, a separate rating for instability or subluxation of the left knee under Diagnostic Code 5257 is not warranted in this case. The Board also observes that mild degenerative joint disease of the left knee was shown on X-ray in January 2009. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating 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, a 10 percent evaluation is warranted if there is X- ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. As the Veteran has already been awarded a 10 percent rating based on painful, limited motion, assigning a separate 10 percent rating under Diagnostic Code 5003 would constitute pyramiding as she would be compensated twice for the same symptomatology. 38 C.F.R. § 4.14; Esteban, supra. Moreover, as there is no X-ray evidence of involvement of two or more major joints, a 20 percent rating is not warranted under Diagnostic Code 5003. The Board has also considered whether the Veteran is entitled to a separate or rating for left knee ankylosis, cartilage dislocation or removal, impairment of the tibia or fibula, and/or genu recurvatum. However, because the evidence of record fails to demonstrate such symptomatology, the Veteran is not entitled to an increased or separate rating under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263, respectively. With respect to Diagnostic Code 5258, such provides for a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, the Board notes that McMurray's testing was positive in December 2008; however, such testing was normal in October 2008 and May 2009, and there is no other evidence of a dislocated or torn meniscus. Therefore, Diagnostic Code 5258 is inapplicable. The Board further finds that staged ratings for the Veteran's disability is not warranted as her symptomatology has remained stable throughout the appeal period. See Fenderson, supra. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted 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 that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. 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. Second, 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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected left knee disability with the established criteria found in the rating schedule. The Board finds that the Veteran's left knee symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, the Veteran has been assigned a 10 percent rating in contemplation of her functional loss resulting from painful, limited motion. There are no additional symptoms of her left knee that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, to the extent that the Veteran's left knee may interfere with her employment as a teacher, such interference is addressed by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Finally, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total rating based on individual unemployability, due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, however, the record does not suggest, and the Veteran does not allege, that her service-connected left knee disability has rendered her unemployable. Indeed, the record shows that the Veteran is employed. As such, Rice is inapplicable to this case and need not be further addressed. For the foregoing reasons, the Board finds that an initial rating in excess of 10 percent for left knee chondromalacia is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against other higher or separate ratings, that doctrine is not further applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial rating in excess of 10 percent for left knee chondromalacia is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs