Citation Nr: 1306249 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 06-31 971A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a rating in excess of 10 percent for chondromalacia of the left knee prior to June 11, 2007, exclusive of temporary total evaluations. 2. Entitlement to a rating in excess of 20 percent for chondromalacia of the left knee since June 11, 2007, exclusive of temporary total evaluations. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from August 1993 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In October 2009, the Board remanded the case to the agency of original jurisdiction (AOJ) to schedule the Veteran for a Board hearing. He subsequently testified at a hearing before an Acting Veterans Law Judge (AVLJ) in April 2010. In December 2010, the Board remanded the case to the AOJ for additional development. Thereafter, in February 2012, the Board advised the Veteran by letter that the AVLJ who conducted the April 2010 hearing was no longer employed by the Board and that he had the right to another hearing by a VLJ who would decide the appeal. The Veteran requested another Board hearing and the case was remanded to the AOJ in May 2012 to schedule the hearing. In August 2012, the Veteran testified before the undersigned VLJ who will now decide the appeal. See 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2012). The decision below addresses the left knee rating claim for the period prior to June 11, 2007. The left knee rating claim for the period since June 11, 2007, and the TDIU claim are addressed in the remand that follows the Board's decision. FINDINGS OF FACT 1. Prior to March 13, 2007, the Veteran's service-connected chondromalacia of the left knee was manifested by painful motion with noncompensable limitation of motion. 2. From March 13, 2007, the Veteran's service-connected chondromalacia of the left knee was manifested by painful motion resulting in functional loss equating to limitation of flexion to 30 degrees. CONCLUSIONS OF LAW 1. Prior to March 13, 2007, the criteria for a rating in excess of 10 percent for service-connected chondromalacia of the left knee were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.30, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012). 2. Effective March 13, 2007, the criteria for a 20 percent rating for service-connected chondromalacia of the left knee, but no higher, were met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.30, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision has been accomplished as to the left knee rating claim for the period prior to June 11, 2007. Through a May 2004 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his claim for increase. The letter told him that the evidence must show that his service-connected left knee disability had gotten worse or increased in severity. By a March 2006 notice letter, the Veteran was provided with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Additionally, in a June 2008 letter, the RO provided the Veteran with the specific rating criteria for evaluating the knee. Although the complete notice was not provided until after the RO initially adjudicated the Veteran's claim, the claim was properly re-adjudicated in May 2011, which followed the adequate notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board also finds that the May 2004 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disability. Consequently, a remand of this rating issue for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with this issue. The Veteran's service treatment records have been obtained and associated with the claims file, as have treatment records from the VA Medical Center (VAMC) in Denver, Colorado. The Veteran's Vocational Rehabilitation & Employment file has been obtained. Records from private treatment providers have also been obtained, including from providers in Germany and the records have been translated to English. Additionally, the Veteran was provided a VA examination in connection with his claim, the report of which is of record. That examination report contains sufficient evidence by which to evaluate the Veteran's left knee disability in the context of the rating criteria. Furthermore, as noted in the introduction, the Veteran was afforded two hearing before the Board, the transcripts of which are also of record. Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative to this rating period that need to be obtained. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. The Board notes that the left knee rating claim for the more recent rating period is being remanded for additional development, including a request for treatment records. The Board does not find that this action prohibits an adjudication of the earlier rating period on appeal because there is no reasonable possibility that physical therapy records or treatment records dated since 2011 or 2012 will be relevant to the rating period dated prior to June 11, 2007. Thus, the Board may proceed to address the earlier rating stage on the merits. 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 (West 2002); 38 C.F.R. Part 4 (2012). 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 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2011). The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2011); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. The United States Court of Appeals for Veterans Claims (Court) has held that consideration of the appropriateness of a staged rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Here, a staged rating has been created and the Board is addressing the merits of the earlier staged rating period-prior to June 11, 2007. The Veteran's service-connected chondromalacia of the left knee has been evaluated as analogous to Diagnostic Code 5010 for "arthritis due to trauma." Under that diagnostic code, the disability is rated on the basis of limitation of motion of the affected joint. See 38 C.F.R. § 4.71a (Diagnostic Codes 5003, 5010) (2012). Diagnostic Codes 5260 and 5261 relate to limitation of motion of the knee joint. For limitation of flexion of the leg, a noncompensable (zero percent) 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 zero to 140 degrees. 38 C.F.R. § 4.71 (Plate II) (2012).) 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 (2012); 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 filed a claim for increase for his service-connected chondromalacia of the left knee in December 2003. He stated that the disability had worsened and that he had left knee surgery. Records from private treatment providers in Germany show that the Veteran underwent arthroscopic surgery on the left knee in July 2003 and September 2003. Due to the effects of these surgeries, the Veteran was awarded a temporary total disability rating for convalescence. See 38 C.F.R. § 4.30 (2012). The temporary total rating was in effect from July 28, 2003 through May 31, 2004. Thus, the Board's schedular evaluation of the Veteran's disability will not include this time period when he was temporarily rated totally disabled. See 38 C.F.R. § 4.30(a) (the total rating will be followed by an open rating reflecting the appropriate schedular evaluation). The Veteran was seen by Dr. J.B. in June 2004 following the convalescence period. X-rays of the left knee showed retropatellar sclerosis with lower patellar osteophytes. The Veteran reported experiencing left knee pain and swelling, which restricted his activity. Physical examination revealed pain on the left side and tenderness over the lateral and medial portions of the joints. Range of motion of the left knee was 5-0-117 degrees passively and 5-0-110 degrees actively. The diagnosis was advanced, laterally focused gonarthrosis of the left side with knock knees. The condition was following two arthroscopic surgeries with outer meniscus removal and smoothing the femoral lateral condyle cartilage. There was mild synovitis, mild restriction of flexion, and mildly reduced circumference of the left thigh. In February 2006, Dr. W.C. conducted an examination of the knees. The Veteran complained of a long history of bilateral knee pain. He reported that he still had knee pain even after the surgeries. Range of motion testing showed full extension and flexion to 110 degrees. Examination revealed intact ligaments, no meniscal signs, mild anterior pain, and no patellar instability. X-rays showed mild degenerative changes. The impression was bilateral chondromalacia patella. In March 2006, the Veteran initially sought treatment through the Denver VAMC. He complained of left knee pain. Examination showed no swelling, effusion, increased skin temperature or erythema. There was crepitus with no limitation of motion. Stability tests were negative. The assessment was degenerative joint disease of the left knee. The Veteran was prescribed pain medication. X-rays were taken of the left knee that showed arthritic changes. The Veteran underwent physical therapy in April 2006. It was noted that he exercised regularly. It was thought that a knee brace would lessen the strain on the knee joints. The Veteran was assessed with bilateral knee degenerative joint disease with meniscus degeneration and partial removal. A June 2006 entry shows a complaint of left knee pain. The Veteran continued to work in food service and had not missed any work. Examination of the left knee again showed tenderness and crepitus with no limitation of range of motion. The Veteran denied experiencing instability and the examination did not reveal instability. The assessment was prepatellar bursitis of the left knee. Another set of x-rays showed degenerative changes. Later in June 2006, the Veteran was seen again at the Denver VAMC and there was a mild amount of swelling. VA records show continued treatment for left knee pain in March 2007 and April 2007. A May 2007 MRI of the left knee revealed tricompartmental osteoarthritis. In June 2007, the Veteran was screened for possible orthopedic surgery on the left knee. There was tenderness to palpation and effusion. Range of motion testing was not conducted at that time. X-rays again showed degenerative changes. Dr. W.C. examined the Veteran again in June 2007. Left knee pain was noted but the examination primarily pertained to the right knee. The Veteran underwent a VA compensation examination on July 11, 2007. Although the date of the examination report corresponds to a subsequent rating period, the Board finds the information in the report to be probative because it is an assessment of the Veteran's left knee disability prior to him undergoing further arthroscopic surgery on July 20, 2007. The examiner reviewed the claims file, noted an accurate medical history, and examined the Veteran. The Veteran had a history of left knee pain with two prior surgeries. He was taking pain medication for treatment and he was working as a full-time cook. The range of motion of the Veteran's left knee was from zero to 35 degrees with pain throughout the entire range of motion. Notably, the Veteran did not attempt repetitive motion due to the upcoming surgery and discomfort. There was tenderness over the patella but not other tests were performed in light of the Veteran's upcoming surgery. The final diagnosis was left knee chondromalacia, status post two surgeries, healed and stable, with a third surgery scheduled for the next week, with limitations in motion and function and pain. In consideration of the evidence of record, the Board finds that the evidence shows that the Veteran's service-connected left knee disability more closely approximated the rating criteria for a 20 percent rating for at least a portion of the rating period in question. The July 2007 VA examination showed that, although extension of the left knee was normal, the Veteran's flexion was limited to 35 degrees with painful motion. While repetitive motion could not be completed, with consideration of painful motion and when resolving reasonable doubt in the Veteran's favor, limitation of flexion more closely approximated 30 degrees representing a 20 percent rating rather than the 45 degrees representing a 10 percent rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.71a (Diagnostic Code 5260). Although the Veteran experienced pain throughout the range of motion, the examiner did not indicate that the painful motion resulted in functional loss worse than even 30 degrees of limited flexion. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. The salient question is when does the evidence show that it was factually ascertainable that the Veteran's left knee disability manifested in limitation of flexion resulting in a 20 percent rating. Earlier in the rating period, the Veteran's range of motion of the left knee was generally normal or at a noncompensable level. As recently as June 2006, there was no limitation of range of motion. After a break in treatment, the Veteran was seen again on March 13, 2007 with continued complaints of knee pain. From this time forward, his disability appeared to worsen to the point of requiring the July 2007 surgery. Thus, although no range of motion testing was conducted until the July 2007 VA examination, the evidence tends to show that the Veteran's left knee disability more closely approximated a 20 percent rating as of March 13, 2007. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In view of this finding, the Board concludes that a rating in excess of 10 percent is warranted for chondromalacia of the left knee prior to June 11, 2007-20 percent effective March 13, 2007. A rating in excess of 20 percent is not warranted as the evidence does not show that the Veteran's left knee disability resulted in limitation of flexion approximating 15 degrees or any limitation of extension. Additionally, a higher or separate rating is not warranted for the left knee disability as the evidence did not show there was instability or other impairment warranting a higher or separate rating. See 38 C.F.R. § 4.71a (Diagnostic Codes 5256 to 5263). Moreover, a rating in excess of 10 percent is not warranted prior to March 13, 2007. The Veteran's range of motion of the left knee was generally normal or limited to a noncompensable level. The 10 percent rating that is already assigned for that time period contemplates the effects of painful motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010. The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's left knee disability reflected so exceptional or unusual a disability picture during the rating period in question as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of his disability have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture was not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). For the foregoing reasons, the Board finds that the claim for a rating in excess of 10 percent for chondromalacia of the left knee prior to June 11, 2007, exclusive of temporary total evaluations, should be granted to the following extent-20 percent effective March 13, 2007. A higher or separate rating must be denied. In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine. 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 Prior to March 13, 2007, a rating in excess of 10 percent for chondromalacia of the left knee is denied. Effective March 13, 2007, a 20 percent rating, but no higher, is granted for chondromalacia of the left knee, subject to the laws and regulations governing the payment of monetary awards. REMAND The Board finds it necessary to remand the issue of entitlement to a rating in excess of 20 percent for chondromalacia of the left knee since June 11, 2007, exclusive of temporary total evaluations, and the issue of entitlement to a TDIU, to the AOJ for additional development and consideration. During the August 2012 Board hearing, the Veteran stated that he was approved to undergo physical therapy for his left knee. It appears that the physical therapy was going to be administered by a private facility. On remand, the Veteran should be asked to identify any facilities that he has received treatment for his left knee since 2011 and any identified records should be obtained in compliance with VA's duty to assist. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). It appears that the Veteran continues to receive regular treatment at the Denver VAMC. Updated treatment records should be obtained in light of the remand. The last VA compensation examination of the Veteran's left knee was conducted in February 2011. Given that two years have passed since the most recent VA compensation examination and that the disability may have increased in severity, the Board finds that the Veteran should be afforded another VA compensation examination to assess the current degree of disability of the chondromalacia of the left knee. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The February 2011 VA examination report notes that the Veteran quit his full-time job as a cook because he could not stand due to his knee problems. This statement reasonably raises the issue of entitlement to a TDIU. The Court has held that there is no freestanding claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 451 (2009). The matter is a component of the appeal for a higher rating regarding the service-connected left knee disability. Id. at 452-53. As such, it is necessary for the Board to remand the issue. On remand, the AOJ will have the opportunity to include the issue in a new notice letter, ask the prospective VA examiner to address the matter, and adjudicate the issue in the first instance. Accordingly, these issues are REMANDED for the following actions: 1. Send a new notice letter to the Veteran and his representative. The letter should notify the Veteran of the information and evidence necessary to substantiate the claim for TDIU. The letter should contain notice of the manner in which both disability ratings and effective dates are assigned for awards of disability benefits. The Veteran and his representative should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 2. Also, ask the Veteran to identify any medical facility from which he has received treatment for his left knee disability since 2011, including any physical therapy. Request any identified treatment records. Obtain a release from the Veteran as necessary. 3. Obtain the Veteran's more recent treatment records (since February 2011) from the Denver VAMC and associate the records with the claims folder. 4. Thereafter, schedule the Veteran for a VA examination to determine the severity of his chondromalacia of the left knee. The claims folder should be made available to and reviewed by the examiner. All necessary tests should be performed. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected left knee disability. The examiner should report the range of motion of the left knee, in degrees. The examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the left knee is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should state whether there is any evidence of recurrent subluxation or lateral instability of the left knee, and if so, to what extent. In addition, the examiner should provide an opinion concerning the impact of the service-connected disabilities on the Veteran's ability to work, to include whether they are sufficient by themselves to preclude him from securing and following a substantially gainful occupation. (Service connection is currently in effect for chondromalacia/degenerative joint disease of the left knee, lateral patellar subluxation of the left knee, right foot heel spur, and degenerative joint disease of the right knee.) The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 5. Finally, after undertaking any other development deemed appropriate, adjudicate the two issues remaining on appeal, including entitlement to a TDIU. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs