Citation Nr: 1308906 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 07-22 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a separate compensable rating for limitation of flexion of the right knee. 2. Entitlement to service connection for a left knee disability claimed as secondary to a service-connected disease or injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran had active service from August 1967 to March 1977. This matter comes before the Board of Veterans' Appeals (the Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Phoenix, Arizona. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. The issue of entitlement to service connection for a left knee disability claimed as secondary to a service connected disability was remanded in November 2010. In a decision in November 2010, the Board denied service connection for a left knee disorder on a direct basis and remanded the issue of service connection for a left knee disability on a secondary basis. Therefore the current appeal is limited to service connection for a left knee disability as secondary to a service-connected disorder. In June 2012, the Board denied a rating higher than 10 percent for trochanter bursitis of the left hip prior to July 29, 2009 and a rating higher than 20 percent thereafter. The Board granted a rating of 40 percent for degenerative joint disease of the right knee, traumatic and postoperative meniscectomy, prior to July 29, 2009 and determined that a rating higher than 20 percent was not warranted from July 29, 2009. The Board remanded the issues of entitlement to a separate compensable rating for limitation of flexion of the right knee and entitlement to service connection for a left knee disability, claimed as secondary to a service-connected disorder. Therefore these are the only remaining issues on appeal. FINDINGS OF FACT 1. Prior to December 8, 2010 and after July 6, 2012, there was minimal, noncompensable functional impairment of flexion of the right knee. Flexion was better than 60 degrees. 2. From December 8, 2010 to July 6, 2012, flexion of the right knee was functionally limited to 47 degrees. 3. A left knee disability is not shown to have been caused or aggravated by the service-connected trochanter bursitis of the left hip or the service-connected degenerative joint disease of the right knee, traumatic and postoperative meniscectomy. CONCLUSIONS OF LAW 1. Prior to December 8, 2010 and after July 6, 2012, a separate rating for limitation of flexion of the right knee is noncompensable. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260 (2012). 2. From December 8, 2010 to July 6, 2012, a separate rating for limitation of flexion of the right knee is 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260 (2012). 3. A left knee disability is not proximately due to (causation or aggravation) a service-connected disease or injury. 38 C.F.R. § 3.310 (prior to October 10, 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As for the increased rating claim for degenerative joint disease of the right knee, traumatic and postoperative meniscectomy, the RO provided pre-adjudication VCAA notice by letters dated in March 2006. The Veteran was notified of the evidence needed to substantiate the claim for an increased rating as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA. In a separate letter that same month, the Veteran was provided with the provisions for disability ratings and for the effective date of the claim. As for the claims of service connection for a left knee disability claimed as secondary to a service-connected disorder, the RO provided a VCAA notice letter in February 2010. The Veteran was notified of the evidence needed to substantiate the claim of service connection on a secondary basis, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim. To the extent that the February 2010 VCAA notice letter came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided substantial content-complying VCAA notice, the claim of service connection for a left knee disability on a secondary bases was readjudicated as evidenced by the supplemental statement of the case, dated in December 2011 and December 2012. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.) Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. Service records, VA medical records, private medical records, and lay statements have been associated with the file. The Veteran was afforded a VA examination in July 2012, which addressed flexion of the right knee and whether the left knee disability is secondary to a service-connected disorder. The examiner reviewed the Veteran's claims file and provided medical opinions with a supporting rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, with respect to the Veteran's claims, there is no additional evidence which needs to be obtained. Rating Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings". Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here the disability has not significantly changed during the relevant time period and a staged rating is unwarranted. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. The VA General Counsel has held that separate ratings could be provided for limitation of knee extension and flexion under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The issue on appeal is limited to whether a separate compensable rating is warranted for limitation of flexion of the right knee. Under Diagnostic Code 5260, limitation of flexion of the knee to 60 degrees warrants a noncompensable rating. Limitation of flexion of the knee to 45 degrees warrants a 10 percent rating. Limitation of flexion of the knee to 30 degrees warrants a 20 percent rating. And limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Analysis In December 2005, the Veteran filed a claim for an increased rating for his right knee. He contended that swelling and stiffness caused bending and mobility problems. A December 2005 VA progress notes show range of motion was 26 degrees to 86 degrees resulting in severe pain and right knee passive range of motion was 2 degrees to 120 degrees. On VA examination in February 2006, active flexion was 86 degrees. There was positive tenderness with pain on motion. On VA examination in July 2009, flexion was 90 degrees and the examiner noted that there was no additional range of motion loss on repeat testing. The diagnosis was status post medial meniscectomy plus degenerative joint disease. The examiner further stated that functional impairment was moderate, there was some weakness and no lack of endurance. There was an antalgic gait on the right with incoordination, but the major functional impact was pain. On VA examination on December 8, 2010, pain prevented flexion further than 47 degrees. The examiner noted that the main functional impact of the joints is pain rather than weakness, fatigue, incoordination or lack of endurance. There was loss of function with use. On VA examination in July 6, 2012, the examiner stated that the Veteran's reported having flare ups with walking or standing more than 10 minutes. He had difficulty kneeling or squatting and climbing stairs and could not run. Flexion of the right was 100 degrees with pain. The Veteran was able to perform repetitive-use testing with 3 repetitions. Right knee post-test range of motion was 100 degrees. The Veteran did not have additional limitation in range of motion following repetitive-use testing. He did have functional loss and/or functional impairment, the contributing factors were less movement than normal, weakened movement, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing. The Veteran had pain on palpation. Based on the evidence presented, the Board finds that from December 8, 2010 to July 6, 2012 a separate 10 percent rating is warranted for limitation of flexion of the right knee. In this regard, for this period of time, flexion was shown to be functionally limited to 47 degrees with pain, which more nearly approximate the criteria for a 10 percent rating under Diagnostic Code 5260. 38 C.F.R. § 4.7. A 10 percent rating is warranted under Diagnostic Code 5260 for limitation of flexion limited to 45 degrees. However, from December 8, 2010 to July 6, 2012 a separate rating higher than 10 percent for limitation of flexion is not warranted as these findings do not more nearly approximate or equate to the functional equivalent of flexion limited to 30 degrees or less, to include consideration of any additional functional loss due to pain, pain on movement, swelling, atrophy, fatigue, weakness, incoordination, to include during flare-ups and with repeated use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Here there is no lay or medical evidence that flexion approximated 30 degrees due to any factor. As for the period prior to December 8, 2010 and after July 6, 2012, the evidence warrants a separate rating for limitation of flexion as the evidence establishes underlying pathology and some functional impairment. In December 2005 and February 2006 flexion was limited to 86 degrees with pain. In July 2009 flexion was limited to 90 degrees with pain and some weakness and incoordination. In July 2012 flexion was limited to 100 degrees, with pain and weakened movement, and the Veteran reported having flare-ups with walking or standing more than 10 minutes. However a compensable separate rating for limitation of flexion of the right knee is not warranted prior to December 8, 2010 and after July 6, 2012 as none of the findings during these two periods more nearly approximate flexion limited to 45 degrees, to include consideration of any additional functional loss due to pain, pain on movement, swelling, atrophy, fatigue, weakness, incoordination, to include during flare-ups and with repeated use. 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, painful motion under 38 C.F.R. § 4.59, is already contemplated under Diagnostic Code 5261. Section 38 C.F.R. § 4.59 does not contemplate a separate compensable evaluation for each plane of motion. The Board has also considered the Veteran's lay statements that describe his right knee pain and discomfort. The Veteran is certainly competent to describe his observations and the Board finds these statements are credible. In this case, however, the Board finds the objective medical findings by skilled professionals are more persuasive which, as indicated above, do not support a compensable separate rating for limitation of flexion of the right knee prior to December 8, 2010 and after July 6, 2012 nor do they support a separate 10 percent rating for limitation of flexion of the right knee from December 8, 2010 to July 6, 2012. In essence, the lay evidence, while accepted as credible, does not provide a basis for a higher evaluation. Extraschedular Consideration The Veteran contended that his service-connected right knee disorder affected his employment. In December 2005, he stated that he worked for the US Postal Service where he was on his feet for 6 or 7 hours, which caused pain in his right knee. His supervisor in February 2006 stated that at times he needed help at work because of his knee problems. In October 2009, the Veteran submitted attendance records to show that he missed many days of work in the last three years due to his service-connected right knee. On VA examination in July 2012, the examiner indicated that the Veteran retired from the US Postal service in 2009 based on years of service. She noted that the Veteran reported that he taught flying part-time and had difficulty getting in and out of planes based on limitation of flexion in both knees. While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's degenerative joint disease of the right knee, traumatic and postoperative meniscectomy. The Board finds that the Veteran's right knee disorder is manifested by pain, weakness, incoordination, and limitation of motion and the rating criteria contemplate these impairments. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Secondary Service Connection Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 1110; 1131 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." Paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added, which states: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice- connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. The amendment is to be applied prospectively as it is more restrictive; it is not for application in the present claim because it was filed in December 2005. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran contends that his left knee is secondary to his service-connected traumatic degenerative joint disease of the right knee. In December 2005, he stated that the pain in his right knee caused him to shift his body to left side which resulted in pain and swelling of the left knee. In February 2006, his supervisor stated that he noticed the Veteran shifting his weight to the left side. A private medical record in July 2003, shows that the Veteran reported that he was starting to get left knee pain secondary to lack of use of the right knee. A private doctor in a letter in June 2006, provided an impression of bilateral knee tendonitis with decreased motion. He further concluded that the service-connected right knee caused the Veteran to have tendinitis and bursitis in the left lower extremity. On VA examination in December 2010, the examiner noted that the left knee pain was suggestive of tendinitis. The examiner was of the opinion that the left knee disability was not related to the service-connected trochanteric bursitis of the left hip or the service-connected degenerative joint disease of the right knee. The examiner's rationale was that the left knee condition is "sui generis" rather than due to the Veteran's left hip or right knee. On VA examination in July 2012, the examiner provided a diagnosis of degenerative joint disease of the left knee. After reviewing the claims folder and examining the Veteran, the examiner was of the opinion that the degenerative joint disease of the left knee is unrelated to either the service-connected left hip trochanteric bursitis of the left hip or the degenerative joint disease of the right knee, traumatic and postoperative meniscectomy. Her rationale was that the medical literature does not support the theory that dysfunction in one joint causes dysfunction in another either on the ipsilateral or contralateral side. Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a general matter, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology). The Veteran's lay statement that his left knee condition is secondary to his service-connected traumatic degenerative joint disease of the right knee is competent and credible as the private doctor in June 2006 concluded that the service-connected right knee caused the Veteran to have tendinitis and bursitis in the left lower extremity. Lay evidence is competent when reporting a contemporaneous diagnosis. Jandreau v. Nicholson, 492 F3d. 1372, 1377 (2007). However, for reasons addressed below, the Board finds that the Veteran's lay opinion and the June 2006 private opinion are outweighed by the VA opinion dated in July 2012. With regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one opinion over another depending on factors such as reasoning employed and whether the examiner was informed of the relevant facts. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Considering the relative merits of the analytical findings and the details of the opinions, the Board places more weight on the unfavorable VA opinion dated in July 2012 than the Veteran's lay statement and private doctor's opinion in June 2006 as the VA opinion is supported by a rationale, detailed and consistent with other evidence of record. The Board rejects the Veteran's lay statement and favorable private medical opinion as no reasoning or rationale was provided for the conclusions reached. The examiner stated that the Veteran's service-connected right knee disorder merely caused tendinitis and bursitis in the left lower extremity. The Veteran's lay evidence is accorded no more probative weight than the private medical doctor's opinion as it lacks reasoning and provides no rationale. A mere conclusion statement is insufficient to allow the Board to make an informed decision as to the weight to assign to the medical statement. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Conversely, the VA opinion was based on medical principles and applied to the facts of the case. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). The July 2012 VA examiner concluded that the Veteran's left knee disability is unrelated to either the service-connected left hip trochanteric bursitis or the degenerative joint disease of the right knee, traumatic and postoperative meniscectomy, as dysfunction in one joint does not cause dysfunction in another either on the ipsilateral or contralateral side. The Court has held that service connection can be granted for disability that is aggravated by a service-connected disease or injury and that compensation can be paid for any additional impairment resulting from the service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439 (1995). By determining that the service-connected left hip and right knee disorders did not cause dysfunction in the left knee, the July 2012 examiner opined that these service-connected disorders did not cause any impairment in the left knee. Further, the VA examiner's opinion also implicitly establishes that the service-connected left hip and right knee disorders did not aggravate the left knee condition based on her findings that these disorders did not cause dysfunction of the left knee, which includes any incremental change. The VA examiner considered the nature of the Veteran's left knee disability, history and relevant longitudinal complaints in proffering her opinion. In sum, the Board finds that the most probative evidence establishes that there is no relationship (causation or aggravation) between the Veteran's left knee disability and his service-connected left hip trochanteric bursitis or service-connected degenerative joint disease of the right knee, traumatic and postoperative meniscectomy. Therefore, the preponderance of the evidence is against the claim for secondary service connection. Because there is no approximate balance of positive and negative evidence, the rule affording the Veteran the benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b) (West 2002); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. ORDER Prior to December 8, 2010 and after July 6, 2012, a separate noncompensable rating for limitation of flexion of the right knee is granted. From December 8, 2010 to July 6, 2012, a separate 10 percent rating for limitation of flexion of the right knee is granted subject to the controlling regulations applicable to the payment of monetary benefits. Service connection for a left knee disability claimed as secondary to a service-connected disorder, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs