Citation Nr: 1306676 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-36 127A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial, compensable rating for the service-connected Raynaud's syndrome. 2. Entitlement to an initial rating in excess of 10 percent for the service-connected degenerative arthritis of the right knee. 3. Entitlement to an initial rating in excess of 10 percent for the service-connected degenerative arthritis of the left knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1985 to May 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the RO as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. During the course of the Veteran's appeal in July 2010, the RO granted service connection for erectile dysfunction and awarded special monthly compensation for loss of use of a creative organ. As this represents a full grant of the matter previously on appeal, it is no longer before the Board. FINDINGS OF FACT 1. The service-connected Raynaud's syndrome is shown to include characteristic attacks consisting of paleness of the hands and feet, and swelling, pain, cold sensation and numbness in the hands and feet occurring approximately 1 to 3 times per week. 2. The service-connected degenerative arthritis of the right knee has been manifested by minimal degenerative changes resulting in, at worst, range of motion from normal (0 degrees) on extension to 110 degrees on flexion; there have been no medical findings of instability or other impairment. 3. The service-connected degenerative arthritis of the left knee has been manifested by minimal degenerative changes resulting in, at worst, range of motion from normal (0 degrees) on extension to 110 degrees on flexion; there have been no medical findings of instability or other impairment. CONCLUSIONS OF LAW 1. In resolving all reasonable doubt in favor of the Veteran, the criteria for the assignment of an initial 10 percent rating, but no higher, for the service-connected Raynaud's syndrome have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.31, 4.104 including Diagnostic Code 7117 (2012). 2. The criteria for the assignment of a rating in excess of 10 percent for the service-connected degenerative arthritis of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, DCs including 5003, 5260, 5261 (2012). 3. The criteria for the assignment of a rating in excess of 10 percent for the service-connected degenerative arthritis of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, DCs including 5003, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appropriate VCAA notice letter was sent to the Veteran in December 2008 as part of the BDD program, and prior to the initial adjudication of the claims. The letter notified the Veteran of what information and evidence must be submitted to substantiate his claims, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in the December 2008 letter. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements has been satisfied. All available service treatment records were obtained. The Veteran underwent VA examination in January 2009 to determine the nature and severity of his Raynaud's syndrome and right and left knee degenerative arthritis. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claims. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). General Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection. See Fenderson v. West, 12 Vet. App 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Analysis A. Raynaud's Syndrome Historically, the RO granted service connection for Raynaud's syndrome in an August 2009 rating decision. A noncompensable rating was assigned, effective June 1, 2009. The Veteran's Raynaud's syndrome is evaluated under Diagnostic Code 7117. See 38 C.F.R. § 4.104. Under Diagnostic Code 7117, a 10 percent rating is assigned for Raynaud's syndrome with characteristic attacks occurring 1 to 3 times per week. A 20 percent rating is assigned for Raynaud's syndrome with characteristic attacks occurring 4 to 6 times a week. A 40 percent rating is assigned for Raynaud's syndrome with characteristic attacks occurring at least daily. A 60 percent rating is assigned for Raynaud's syndrome with 2 or more digital ulcers and a history of characteristic attacks. A maximum 100 percent rating is assigned for Raynaud's syndrome with 2 or more digital ulcers plus autoamputation of 1 or more digits and a history of characteristic attacks. A Note to Diagnostic Code 7117 defines a characteristic attack as consisting of sequential color changes of the digits of 1 or more extremities lasting minutes to hours, sometimes with pain and paresthesias, and precipitated by exposure to cold or by emotional upset. See 38 C.F.R. § 4.104, Diagnostic Code 7117. The pertinent evidence of record includes the Veteran's service treatment records, which reflect diagnosis of Raynaud's syndrome. The reports dated in 2008 reflect that the Veteran was taking Diltiazem for treatment. In March 2008, the Veteran complained of constant cold feeling in the fingers and toes with occasional numbness. He indicated that he occasionally got small spots of dead skin/small ulcers of the fingertips and pitted nails. On examination, the examiner observed that the fingernails and toenails were abnormal with pitting. An April 2008 report notes that the Veteran experienced pitting nails due to Raynaud's syndrome. There was no cyanosis present. On VA QTC examination in January 2009, the Veteran reported that he had been diagnose with Raynaud's syndrome in 1985. It involved areas exposed to the sun, including the head, hands and toes, but did not include the face or neck. Due to this skin condition, he had ulcer formations of the finger and toes, itching and shedding of the fingers, head, and toes, crusting fingers, pain and swelling in the toes, and numbness in the fingers and toes. He had no exudation. The symptoms occurred intermittently, as often as 4 times per year, with each occurrence lasting 3 months at a time. The number of attacks within the past year was 4. With respect to impact on daily functions, the Veteran reported that he frequently had to stop his activities due to pain and that it was difficult to hold objects due to swollen and painful fingers. With respect to treatment, the Veteran took Diltiazem, a systemic calcium blocker. He indicated that he had not experienced any side effects from this medication. He had not used UVB, intensive light therapy, PUVA, or electron beam therapy for this condition. On examination, the examiner noted that the Veteran presented with hairless, cold, and pale feet with diminished pedal pulses. The ankle/brachial index (ABI) test revealed normal findings with an ABI of 1.13 on the right and 1.20 on the left. The examiner diagnosed Raynaud's disease. Subjective factors were noted to be swelling, pain, and numbness sensation in the hands and feet. Objective factors were indicated to be diminished pedal pulses, coolness to the touch, and a hairless and pale appearance noted on both feet. The foregoing establishes that the Veteran has been diagnosed with Raynaud's syndrome with symptoms of paleness of the hands and feet, and swelling, pain, cold sensation and numbness in the hands and feet. In addition, the Veteran has indicated that he experience attacks of Raynaud's syndrome up to 4 times per year, with each attack lasting a period of months at a time. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that the service-connected Raynaud's syndrome is productive of a disability picture that more nearly resembles that of the Veteran experiencing characteristic attacks occurring 1 to 3 times per week per week under Diagnostic Code 7117. See 38 C.F.R. § 4.104. The Board points out that, with respect to the Veteran's report on the number of attacks of Raynaud's syndrome per year, a layperson is competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to testify about observable symptoms, such as the number of episodes of Raynaud's syndrome he experiences. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the record overall does not reflect that the Veteran experiences characteristic attacks of Raynaud's at least 4 to 6 times a week. At such, a rating in excess of 10 percent under Diagnostic Code 7117 is not warranted. The Board has also considered whether there are any other potentially applicable diagnostic codes pursuant to which any higher rating for the Veteran's service-connected Raynaud's syndrome could be assigned, but has found none. The Board notes that, while the Veteran has complained of symptoms of itching and crusting of the extremities, he has been awarded service connected for psoriasis. In addition, the Veteran's further complaints of numbness of the extremities are also contemplated in the evaluations assigned for his service-connected carpal tunnel syndrome and peripheral neuropathy of the lower extremities. Thus, additional compensation for Raynaud's syndrome based upon these overlapping symptoms would violate the doctrine against pyramiding. See 38 C.F.R. § 4.14 . Accordingly, on this record, an initial rating of 10 percent is warranted for the entire appeal period. B. Right and Left Knees Historically, the RO granted service connection for degenerative arthritis of the right and left knees in an August 2009 rating decision. A 10 percent rating for each knee was assigned, effective on June 1, 2009. The Veteran's right and left knee disabilities are evaluated under Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved (here, Diagnostic Codes 5260, and 5261). Under Diagnostic Code 5260, a noncompensable rating is assigned for flexion limited to 60 degrees. A rating of 10 percent requires limitation of flexion to 45 degrees. A rating of 20 percent requires limitation of flexion to 30 degrees, and a rating of 30 percent requires limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Standard range of knee motion is from 0 degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. The VA General Counsel has held that a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). The VA General Counsel has further held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying scheduler criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2010); 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. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's service treatment records document his complaints and treatment of bilateral knee pain. A January 2008 treatment report reflects that the Veteran presented with complaints of knee pain he rated a 6 on a scale to 10. He indicated that his symptoms had improved with physical therapy. On examination, the Veteran's range of motion was from 0 to 130 degrees with mild crepitus. There was negative joint line tenderness, but positive patella facet tenderness. A Lachman's test was 1+ bilaterally, but McMurray's testing was negative. There was no laxity on valgus ad varus stress. A diagnosis of osteoarthritis of the knees was assigned. In October 2008, the treating physician noted no erythema, ecchymosis, soft tissue swelling, or joint effusion. Range of motion of both knees was from 0 to 110 degrees with no pain and minimal crepitus. The Veteran was treated with a steroid injection. A diagnosis of degenerative joint disease, status post ACL reconstruction of both knees, was indicated. On VA QTC examination in January 2009, The Veteran reported having ACL tears in service and undergoing surgical repair. He described symptoms of weakness, stiffness, swelling, heat, giving way, lack of endurance, locking, and fatigability in both knees. He did not have redness or dislocation. He reported pain in the knee which occurred constantly. The pain was localized. He described the pain as burning, aching, sharp, sticking, and cramping in nature. He rated the pain a level of 8 or 9 on a scale to 10. The pain could be elicited by physical activity and was relieved by rest and Motrin, Tylenol and injections. At the time of pain he could function with medication. He had not had any joint replacement. He reported functional impairment related to his knees including inability to jog, climb, stoop, play soccer or other running sports, or lift heavy objects. On examination, the Veteran's posture and gait were within normal limits. He did not require any assistive device for ambulation. There was objective evidence of tenderness of the right knee, but neither knee showed signs of edema, effusion, weakness, tenderness, redness, heat or guarding of movement. There was no subluxation of either knee. Crepitus was present in both knees. There was no genu recurvatum or locking pain. The range of motion testing revealed right flexion to 120 degrees with pain beginning at 110 degrees. Left knee flexion was to 110 degrees with pain beginning at 100 degrees. Extension was full in both knees. Joint function was noted to be additionally limited by pain, fatigue, weakness, lack of endurance, incoordination, and pain upon repetitive movement of both knees; however, there was no additional limitation in degrees. Anterior and posterior cruciate ligament stability tests were within normal limits. Medial and lateral meniscus tests were also within normal limits. The X-ray studies of the knees revealed post-surgical degenerative changes of both knees with no acute abnormality. The examiner diagnosed degenerative arthritis of the right and left knee joints. The subjective factors were noted to be weakness, stiffness, swelling, heat, giving way, lack of endurance, locking, fatigability and pain. Objective factors were noted to be x-ray findings showing degenerative arthritic changes. He noted that the effects of these conditions on the Veteran's daily activities included no prolonged running or heavy lifting. As noted, arthritis of the knee may be rated on the basis of limitation of motion under Diagnostic Codes 5260 or 5261. Here, however, the VA examination reports and private medical records do not reflect limitation of flexion or extension such as to warrant a compensable rating. To warrant a rating higher than 10 percent under Diagnostic Code 5260, the medical evidence must show flexion limited to 30 degrees or less. At worst, flexion of both knees has been limited to 110 degrees, which is consistent with a noncompensable rating under Diagnostic Code 5260. Likewise, extension measurements are consistent with no more than a noncompensable rating under Diagnostic Code 5261. The record reflects, however, that the Veteran has had increasing pain and difficulties with both knee. The Board observes that, given the Veteran's painful-albeit, noncompensable-right and left knee motion, and other symptoms, the 10 percent rating assigned appears to be consistent with DeLuca, 38 C.F.R. § 4.40, 4.45, and 4.59 (recognizing the intention of the rating schedule to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). See also 38 C.F.R. § 4.71a, Diagnostic Code 5003. The medical evidence during the period in question simply does not reflect any additional compensable functional loss due to pain, weakness, excess fatigability, or incoordination. As such, the Board finds that the DeLuca factors (noted above) provide no basis for assignment of a rating in excess of 10 percent for either knee. The Board also finds that no other diagnostic code provides a basis for any higher rating. While separate ratings may be assignable for arthritis and instability (see VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997) and VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998)), notwithstanding the Veteran's complaints of instability, there are no objective medical findings of instability of the right or left knee and instability testing on examination yielded normal findings. The Veteran has not described any specific incidents of falls or subluxation. Though the Veteran has reported instability, there is no documentation of instability or subluxation in the record. Here, the Board finds that the medical evidence disclosing no instability is more probative and credible than the lay pleadings. Further, in the absence of any ankylosis or other deformity, evaluation of the knee under any other diagnostic code for evaluating pertaining to musculoskeletal disability of the lower extremities-Diagnostic Code 5256 or 5262-is not appropriate. See 38 C.F.R. 4.71a. There is also no evidence of impairment of the semilunar cartilage indicating a rating under Diagnostic Code 5258 or 5259. Moreover, the disability is not shown to involve any other factors that would warrant evaluation of the disability under any other provisions of the rating schedule. For all the foregoing reasons, the Board finds that initial ratings in excess of 10 percent for the Veteran's service-connected degenerative arthritis of the right and left knees are not warranted. C. All Claims The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the service-connected Raynaud syndrome and right and left knee degenerative arthritis are exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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 and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The Board finds that the rating criteria used to evaluate the service-connected Raynaud's syndrome and right and left knee disabilities reasonably describe his disability level and symptomatology. There is nothing in the record to distinguish his case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disabilities. Moreover, the schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disabilities. 38 C.F.R. § 4.1. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). In adjudicating the claims for a higher rating, the Board has considered the applicability of the benefit-of-the-doubt doctrine. While the Board has resolved all reasonable doubt in the Veteran's favor in granting a 10 percent rating for Raynaud's syndrome, the preponderance of the evidence is against assignment of any higher rating for this disability and for the service-connected degenerative arthritis of the knees. 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 increased, initial rating of 10 percent, but no more for the service-connected Raynaud's syndrome is granted, subject to the regulations controlling disbursement of VA monetary benefits. An increased, initial rating in excess of 10 percent for the service-connected degenerative arthritis of the right knee is denied. An increased, initial rating in excess of 10 percent for the service-connected degenerative arthritis of the left knee is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs