Citation Nr: 1306191 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-42 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for chondromalacia patella of left knee with degenerative joint disease (DJD) by x-ray, residual pain and some limitation of flexion, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for chondromalacia patella of right knee, status post meniscus tear, status post surgical repair, with degenerative joint disease (DJD) of right knee by x-ray, with residual pain and some limitation of flexion, currently evaluated as 10 percent disabling. 3. Entitlement to a compensable rating for right knee postoperative scar. ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from May 1974 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's notice of disagreement was received in November 2009. A statement of the case was issued in September 2010, and a substantive appeal was received in September 2010. Although the appeal also originally included the issue of service connection for posttraumatic stress disorder (PTSD), this benefit was granted by rating decision in September 2010 and is therefore no longer in appellate status. FINDINGS OF FACT 1. The Veteran's service-connected chondromalacia patella of left knee with DJD by x-ray, residual pain and some limitation of flexion is manifested by flexion limited to 90 degrees; extension is full, and there is no recurrent subluxation or lateral instability. 2. The Veteran's service-connected for chondromalacia patella of right knee, status post meniscus tear, status post surgical repair, with DJD of right knee by x-ray, with residual pain and some limitation of flexion is manifested by flexion limited to 90 degrees; extension is full, and there is no recurrent subluxation or lateral instability. 3. The Veteran's service-connected right knee postoperative scar is not manifested by an area of 144 square inches or greater; and is neither unstable nor painful. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected chondromalacia patella of left knee with DJD by x-ray, residual pain and some limitation of flexion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Codes 5010-5260 (2012). 2. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected for chondromalacia patella of right knee, status post meniscus tear, status post surgical repair, with DJD of right knee by x-ray, with residual pain and some limitation of flexion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Codes 5010-5260 (2012). 3. The criteria for entitlement to a compensable disability evaluation for the Veteran's service-connected right knee postoperative scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.118 and Code 7805 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in March 2009. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. Duty to Assist VA has obtained VA treatment records, reviewed the Veteran's Virtual VA file, assisted the Veteran in obtaining evidence, and afforded the Veteran a VA examination in March 2009. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. KNEE I. Laws and Regulations The present appeal involves the Veteran's claim that the severity of his service-connected bilateral chondromalacaia and right knee scar warrant higher disability ratings. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board notes at this point that normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. And a maximum rating of 30 percent is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Turning to other Diagnostic Codes applicable to knee disabilities, the Board notes that a 30 percent disability rating is warranted under Diagnostic Code 5256 when there is ankylosis of the knee with favorable angle in full extension or in slight flexion between 0 and 10 degrees. Under Diagnostic Code 5257, a rating of 10 percent is warranted when there is slight recurrent subluxation or lateral instability; a 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability of the knee; and a maximum rating of 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability of the knee. Under Diagnostic Code 5258, a 20 percent disability rating is available for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. A 10 percent disability rating is allowed when extension is limited to 10 degrees; and 20 percent disability rating is allowed under Diagnostic Code 5261 when extension of the leg is limited to at least 15 degrees. Under Diagnostic Code 5262, a 10 percent rating is available for malunion of the tibia and fibula with slight knee or ankle disability; and 20 percent disability rating is available when there is malunion of the tibia and fibula with moderate knee or ankle disability. There is no rating in excess of 10 percent available under Diagnostic Codes 5259 and 5263. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5261, 5262 and 5263. Additionally, the Board notes that Diagnostic Code 5010 applies to traumatic arthritis and provides that such is evaluated based upon limitation of motion of the affected part, like degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Pursuant to Diagnostic Code 5003, 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 or joints involved. When, however, the limitation of motion of 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. 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, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4,71a, Diagnostic Code 5003. Further, the Board notes that separate ratings may be assigned for knee disability under Diagnostic Codes 5257 and 5003 where there is x-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. The opinions of the VA's General Counsel appear to require persuasive evidence that a claimant actually suffers from the symptomatology set forth in the different rating codes before separate ratings may be assigned. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. II. Analysis A March 2008 VA treatment record shows no joint effusion. An October 2008 VA treatment record shows complaints of pain in both knees with the left knee being more painful than the right. The physical therapist noted that both knees were within normal limits with crepitation of the left greater than the right. Negative instabilities were noted. A November 2008 VA treatment record shows complaints of buckling in the left knee, which caused the Veteran to stumble and fall often. The Veteran shared that his right knee was getting better. While he still had pain, it was not as painful as when he first started therapy. He was issued a metal adjustable cane. When the Veteran was afforded a VA examination in March 2009, he complained of constant moderate achy pain. There was no giving way, instability, stiffness or weakness. There were also no episodes of dislocation/subluxation or effusion. There were locking episodes in the left knee that occurred three times weekly. The Veteran utilized a walking cane and knee supports. There were functional limitations on standing and walking. Upon physical examination, passive and active range of motion was from 0 to 90 degrees bilaterally with pain beginning and ending at 90 degrees. There was no additional limitation of motion on repetitive use. The VA examiner found no ankylosis. The VA examiner diagnosed left knee DJD, right knee meniscus tear status post surgical repair and well-healed scar right knee less than 5 percent total body and 0 percent exposed body. The Board notes that Diagnostic Codes 5259 and 5263 do not provide for disability ratings in excess of 10 percent. Therefore, they are not applicable to this analysis. In turning to the Diagnostic Codes applicable to the knees which do provide for disability ratings in excess of 10 percent, the Board notes that a 30 percent disability rating under Diagnostic Code 5256 would not be warranted in this case because the pertinent medical evidence indicated that there was no ankylosis. The Board further finds that the evidence of record does not support a rating in under Diagnostic Code 5257 for the Veteran's bilateral knee disability. While the Veteran at one point reported buckling of the knee, the most current VA examination shows no subluxation or instability. The Board does not find the Veteran's subjective complaints of instability persuasive when viewed against the findings of trained medical personnel. The overall record is against a finding of recurrent subluxation or lateral instability. The Board acknowledges that the Veteran has DJD. However, even considering additional functional loss due to pain, there is no evidence that flexion is limited to 30 degrees to warrant assignment of a higher rating under Diagnostic Code 5260. There is also no persuasive evidence of any limitation of extension to warrant a rating under Code 5261. While the Veteran had been issued a brace, the Board notes that there is no malunion of the tibia or fibula with moderate knee or ankle disability to warrant a 20 percent rating under Diagnostic Code 5262. With regard to Code 5258, the Board acknowledges the Veteran's report of "locking" and pain. However, a VA treatment record and examination have expressly reported that there was no effusion. Therefore, the Board is unable to find that a 20 percent rating is warranted under this Code. The Board acknowledges that the Veteran has chronic bilateral knee pain and thus, recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca. Nevertheless, higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant ratings of 20 percent. The Board acknowledges the Veteran's statement received in November 2009 in which he asserted that the rating for bilateral knees does not consider the effect of the treating medication. It is unclear to the Board whether the Veteran's asserting that without medication, higher ratings would be warranted. Nevertheless, the ratings are based on limitation of motion exhibited by the Veteran. There is no persuasive evidence of record indicating that the Veteran's range of motion would be further limited so as to warrant a higher rating. The preponderance of the evidence is against the claim for evaluation in excess of 10 percent for left and right knee chondromalacia patella. Should the disabilities increase in severity in the future, the Veteran may always file new claims for increased ratings. SCAR The remaining issue before the Board is entitlement to a compensable rating for right knee postoperative scar. The Veteran's scar has been rated under Diagnostic Code 7805 in which disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 are to be evaluated under an appropriate diagnostic code. Under Diagnostic Code 7802 scar(s) due to other causes not of the head, face or neck, that are superficial and nonlinear warrant a maximum rating of 10 percent rating for area(s) of 144 square inches (929 sq. cm.) or greater. Under Diagnostic Code 7804 for unstable or painful scars, a minimum rating 10 percent rating is warranted for one or two scars that are unstable or painful. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3): Scars evaluated under Diagnostic Codes 7800, 7801, 7802 or 7805 may also receive an evaluation under this diagnostic code, when applicable. When the Veteran was afforded a VA examination in March 2009, the VA examiner observed a surgical scar stemming from a 2002 right knee meniscus repair. He found no skin breakdown. The scar measured 0.4 centimeters (cm) in width and 15.5 cm in length. There was no tenderness on palpation, adherence to underlying tissue, and limitation of motion/loss of function. There was also no underlying soft tissue damage and no skin laceration/breakdown over the scar. The VA examiner diagnosed well-healed right knee surgical scar less than 5 percent total body and 0 percent exposed body. Overall, a compensable rating is not warranted. The scar measured 6.2 cm squared and thus a compensable rating under Diagnostic Code 7802 is not warranted. Also, the Veteran did not complain of painful scars, and there was no medical evidence of an unstable scar. Thus, a compensable rating is not warranted under Diagnostic Code 7804. There was no skin ulceration or breakdown over the scar. Diagnostic Code 7800 is not for application since this pertains to scars of the head, face or neck. Diagnostic Code 7801 is also not for application since this pertains to deep scars (one associated with underlying soft tissue damage), which the Veteran does not have. The preponderance of the evidence is against the claim for a compensable evaluation for right knee postoperative scar. Staged ratings are not of application since the Veteran's scar is adequately contemplated by the noncompensable rating. Should the severity of the scar increase in the future, the Veteran may always file a claim for an increased rating. Extraschedular Consideration In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disabilities at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. ORDER Entitlement to an increased rating for chondromalacia patella of left knee with DJD by x-ray, residual pain and some limitation of flexion, currently evaluated as 10 percent disabling, is not warranted. Entitlement to an increased rating for chondromalacia patella of right knee, status post meniscus tear, status post surgical repair, with DJD of right knee by x-ray, with residual pain and some limitation of flexion, currently evaluated as 10 percent disabling, is not warranted. Entitlement to a compensable rating for right knee postoperative scar is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs