Citation Nr: 1308888 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 07-29 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to an increased rating for left knee degenerative joint disease with chondromalacia of the femoral condyles, status post arthrotomy and repair, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from March 1979 to September 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The matter of service connection for high cholesterol disability was decided by the Board in April 2011. The Board remanded the issues of service connection for heart disability and the rating to be assigned for left knee disability to the RO in April 2011. At the time, the rating for the left knee disability was 10 percent. The RO increased that rating to 20 percent effective from July 19, 2011, the date of a VA examination, in September 2012. The RO also granted service connection for coronary artery disease in September 2012 and so that issue is no longer on appeal. Although certain items of evidence raise the issue of entitlement to a total rating based on individual unemployability (TDIU), the Board notes that the Veteran has already been assigned a combined service-connected disability rating of 100 percent from February 2006. Accordingly, the Board finds that no action on the TDIU issue is necessary. FINDINGS OF FACT 1. Prior to July 19, 2011, the Veteran's service-connected left knee disability did not result in limitation of leg flexion to 30 degrees or less, nor did it result in limitation of extension to 10 degrees or more; there was no lateral instability or recurrent subluxation. 2. From July 19, 2011, the Veteran's service-connected left knee flexion has been limited to 20 degrees; there has been no limitation of extension to 10 degrees or more; and there is no lateral instability or recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left knee degenerative joint disease with chondromalacia of the femoral condyles, status post arthrotomy and repair prior to July 19, 2011, have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5257, 5260, 5621 (2012). 2. The criteria for a disability rating of 20 percent (but no higher) for left knee degenerative joint disease with chondromalacia of the femoral condyles, status post arthrotomy and repair from July 19, 2011, have been met. 8 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5257, 5260, 5621 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially 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 Veteran pre-adjudication notice by a letter dated in March 2006. The notification complied with the requirements of 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; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. VA has obtained treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for left knee disability in 2006, 2008, and 2011; and afforded the Veteran the opportunity to give testimony before the Board. The examinations are adequate as they provide sufficient information to render a fair and accurate determination regarding the disability at issue. 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 has not contended otherwise. The RO complied with the Board's April 2011 remand by obtaining examining the Veteran and readjudicating his claim. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. The Board concludes that the disability has significantly changed during the rating period and so staged ratings are warranted. Disability ratings 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 contains the rating schedule. Under Diagnostic Code 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. Leg extension limited to 20 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5257, other knee impairment with slight recurrent subluxation or lateral instability warrants a 10 percent rating. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. A knee disability can be rated for both limitation of leg flexion under Diagnostic Code 5260 and limitation of leg extension under Diagnostic Code 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Separate ratings may also 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. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability and sets forth symptomatology which will assist in the identification of such. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). On VA examination in June 2006, the Veteran complained of left knee pain which was mostly continuous during the day. He denied swelling. On examination, there was no effusion but there was moderate tenderness to palpation over the medial joint line. There was a 6 1/2 vertical scar over the lateral left knee. Extension was to 5 degrees and flexion was to 130 degrees. There was no additional limitation of joint function after exercise due to pain, fatigue, weakness, lack of endurance, or incoordination. There was no ligament laxity and the Veteran did not walk with an antalgic gait. Strength was intact and there was no muscle atrophy. X-rays revealed left knee arthritis. On VA examination in April 2008, the Veteran reported left knee pain with limping which resulted in him shifting his weight to the right side. He reported intermittent swelling. He reported only being able to walk 5 yards due to left knee pain, and that 90 percent of the time, he was either sitting or lying down due to left knee pain, and that he used crutches and braces. On examination, the Veteran walked in using a set of crutches and knee braces and appeared to be in significant pain. There was a 15-centimeter nontender scar over his left knee. There was no swelling of the knee but it was markedly tender on palpation circumferentially. Left knee extension was to 0 degrees and flexion was to 45 degrees, limited by pain. There was no ligament laxity or muscle atrophy, and strength was intact. After exercise, there was no additional impairment of joint function caused by pain, fatigue, weakness, or lack of endurance. The Veteran walked unassisted with a markedly antalgic gait. He did so slowly using crutches. He was able to walk 100 feet. On VA evaluation in October 2009, the Veteran had normal motor and a full range of motion in his knees with no effusion but with crepitus and mild tenderness. On VA evaluation in August 2010, the Veteran complained of recently noticed increasing left knee pain and stiffness. On examination, he had left knee scars. There were no inflammatory changes. He had a very limited ability to flex his left knee. There was mild tenderness of the patella and mild crepitation. There was no ligamentous injury. The impression was chondrocalcinosis and osteoarthritis of the left knee. On VA examination on July 19, 2011, the Veteran complained of continuous moderate to severe left knee pain with swelling. He indicated that with prolonged walking or standing, there was increased pain, and that the pain was worse after walking 5-10 feet. He stated that he stayed at home due to the knee pain, and that there were daily flare-ups where he was completely incapacitated and just had to sleep. He took Tylenol and used a brace and a cane. On examination, the left knee had no swelling but there was marked circumferential tenderness on minimal palpation. Flexion was limited to 20 degrees and extension to 0 degrees. There was much resistence in trying to flex the Veteran's knee. There was no muscle atrophy, ligamentous laxity, or weakness. After exercise, there was no additional impairment of joint function due to pain, fatigue, weakness, incoordination, or lack of endurance. Based on the evidence, the Board concludes that prior to July 19, 2011, no more than one 10 percent rating is warranted for the Veteran's service-connected left knee disability, under Diagnostic Code 5260, even when 38 C.F.R. §§ 4.40, 4.45 are considered. The Veteran did not have limitation of flexion of the left knee to 30 degrees or less. Instead, left knee flexion was to 130 degrees on VA examination in June 2006 and to 45 degrees on VA examination in April 2008. There was no change after exercise. Reportedly he had a full range of motion of his knees in October 2009. While his left knee flexion was reportedly very limited in August 2010, there is no evidence that it was limited to 30 degrees or less at that time. Moreover, prior to July 19, 2011, the Veteran did not have limitation of extension of his left leg to 10 degrees or more. Extension was to 0 degrees in April 2008 and normal (normal is to 0 degrees - see 38 C.F.R. § 4.71a, Plate II (2012)) in October 2009. No left knee instability was shown prior to July 19, 2011. Accordingly, separate ratings under Diagnostic Code 5261 or 5257 are not warranted prior to July 19, 2011. However, after the Board also concludes based on the evidence that from July 19, 2011, a 30 percent rating is warranted for the Veteran's service-connected left knee disability under Diagnostic Code 5260. On that date, the Veteran's left knee flexed to 20 degrees. Although limitation to 15 degrees is required for a 30 percent rating under Diagnostic Code 5260, in consideration of 38 C.F.R. § 4.7, the Board is able to find that the limitation of flexion more nearly approximates the criteria for a 30 percent rating. This is the highest rating available under Code 5260. The Veteran had no limitation of extension and no instability on that date, and so the criteria for compensable ratings under Diagnostic Code 5261 or 5257 for such are not met. The Board has considered whether to assign a compensable rating for the Veteran's postoperative left knee scar under 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Such code warrants a 10 percent rating for scars which are painful on examination. However, the preponderance of the evidence indicates that the Veteran's left knee scar has not been painful at any time during the rating period. He has not contended that it has been painful, and it was reported to be nontender on examination in April 2008. Extraschedular consideration The Board also recognizes that the Veteran and the record may be understood to suggest impact of the service-connected disability on the Veteran's work functioning. 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 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 155. 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 within the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of the left knee disability. For these reasons, referral for extraschedular consideration is not warranted. ORDER A disability rating in excess of 10 percent for left knee degenerative joint disease with chondromalacia of the femoral condyles, status post arthrotomy and repair prior to July 19, 2011, is not warranted. To this extent, the appeal is denied. A disability rating of 30 percent (but no higher) for left knee degenerative joint disease with chondromalacia of the femoral condyles, status post arthrotomy and repair from July 19, 2011, is warranted. To this extent, the appeal is granted, subject to laws and regulations governing payment of VA monetary benefits. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs