Citation Nr: 1311244 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 09-03 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for traumatic arthritis of the right knee. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active military duty from August 1981 to January 1986. The appeal comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran had also perfected an appeal of a claim for service connection for a left ankle condition. However, a Decision Review Officer (DRO) at the RO by an April 2012 decision granted that claim. Because that was a complete grant of the benefit sought on appeal, there remains no case in controversy as to that claim for Board review. The Veteran and his spouse testified before the undersigned Veterans Law Judge at a Travel Board hearing conducted at the RO in August 2012. A transcript of that hearing is contained in the claims file. In November 2012, the Board remanded the case for additional development; it is again before the Board for additional appellate review. FINDING OF FACT The Veteran's right knee disability has not caused incapacitating exacerbations or limitation of extension to 10 degrees or limitation of flexion to 60 degrees at any point over the appeal period. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for traumatic arthritis of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Post-service medical records have been associated with the claims file. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in November 2012 in order to afford the Veteran am opportunity to submit additional evidence or argument to further his claim and to obtain any outstanding records. In addition, the Board's instructions were to provide the Veteran with an examination to determine the current nature and severity of his right knee disability. The Veteran was sent a letter in November 2012, informing him that he could submit additional records and providing him with release forms for any private records he wanted the VA to obtain on his behalf. He did not respond to this letter. In addition, the Veteran was provided with the required examination in February 2013. The Board finds that this VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the report describes the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Evaluation of initial disability rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is service-connected at a 10 percent disability rating under Diagnostic Code 5003 for traumatic arthritis of the right knee. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. The Diagnostic Code's that focus on limitation of motion of the knee are Diagnostic Code's 5260 and 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. VA regulations also instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA's Office of General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code's 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Code's 5003 and 5257, provided that a separate rating is based upon additional disability. Subsequently, in VAOPGCPREC 9-98 (Aug. 14, 1998), the VA General Counsel further explained that if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See also VAOPGCPREC 9-04 (Sept. 17, 2004) (which finds that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint). Analysis The Veteran contends that his service-connected right knee disability warrants a higher initial disability rating. At his hearing in August 2012, the Veteran reported that he had pain, swelling and giving way in his right knee. Additionally, his wife testified that she had observed the Veteran mentioning ongoing pain and swelling in the right knee. The Veteran was afforded a VA examination in December 2006. The Veteran indicated that he had pain in his right knee most of the time, and that he also had swelling and instability approximately once a week. He had no indication of locking. He had a knee brace, but did not use it regularly. He had flare-ups when he walked or stood too long, and these increased his pain and swelling. Upon examination, flexion was to 140 degrees and extension was to 0 degrees, and repeat flexion and extension of his knee produced no indication of pain, weakness or fatigue. Lateral and medial stress on the knee shows no laxity of the lateral or medial collateral ligaments. He had negative anterior and posterior drawer signs, which indicated intact anterior and posterior cruciate ligaments. He had a negative McMurray sign. A December 2006 VA X-ray revealed narrowed joint spaces with sclerotic articular margins and subchondral cystic changes consistent with arthritis. Soft tissues were normal, and there may have been small suprapatellar joint space effusion. An October 2010 VA examination report shows that the Veteran reported that he had occasional swelling in his right knee, and that going up and down stairs aggravated his knee. He had one episode where he had a sense of giving way on him but he did not fall. He had no recent treatment except over the counter medications. He described no flare-ups or incapacitating episodes, and reported that he did not use braces. The examiner noted that the Veteran had a magnetic resonance imaging study (MRI) of the right knee in October 2002, which revealed a grade-3 cleavage tear of the medial meniscus, with remote complete anterior cruciate ligament (ACL) tear. Examination in November 2002 was stable, and the examiner doubted the MRI report of an ACL tear based on examination. He had a stable knee at that time. On examination, there was no obvious deformity or effusion but there was crepitus with range of motion. The knee was stable to varus/valgus stress testing in both extension and 30 degrees of flexion. He had a negative Lachman's test, negative anterior-posterior drawer test. He did have medial joint-line tenderness to palpation, but had a negative McMurray's test. Range of motion was 0 to 130 degrees and there was no pain, fatigue, weakness or incoordination with repetitive motion. He had a normal gait. The examiner noted that the Veteran had tricompartment degenerative changes in the knee with significant narrowing of the medial compartment consistent with posttraumatic arthritis. The examiner opined that the disability was mild. Private medical records reflect that the Veteran was diagnosed with right knee medical and lateral meniscus tears in July 2012, and that he underwent right knee arthroscopic partial medial and lateral meniscectomy. A February 2013 VA examination report shows that the examiner noted that the Veteran had undergone arthroscopic surgery in 2012 for a torn meniscus and ACL, and that he did fine initially after the surgery. He reported that he had minor swelling in the right knee in the prior week, but that most of the time he was doing well with the knee. He was more active and had no major limitations or incapacitating events due to his right knee disability. The Veteran reported flare-ups of his knee that lasted three to four days. The frequency was every six to eight months, and had a mild impact on walking. Range of motion was 0 to 130 degrees, with no objective evidence of painful motion. There was no additional limitation of range of motion on repetitive testing; however, the examiner noted that the Veteran had swelling after repetitive use. The examiner noted that the Veteran had tenderness and pain to palpation for the joint line or soft tissue of his right knee. The Veteran has no anterior, posterior or medial-lateral instability in his right knee. There was no evidence or history of recurrent patellar subluxation or dislocation. The examiner did note that the Veteran had surgery to repair a meniscal tear in 2012, as described above, and that the residuals from this were minor pain and swelling. The examiner noted that the Veteran had a scar from his surgery, but that it was not pain or unstable and did not cover a total area greater than 39 square centimeters or six square inches. Analysis The Board finds that, based on the evidence of record, the Veteran's right knee disability does not warrant a higher disability rating under Diagnostic Code 5003. There is no evidence that the Veteran has had any incapacitating exacerbations of his right knee arthritis over the appeals period. At his October 2010 and February 2013 examinations, the Veteran specifically reported that he did not have any incapacitating episodes of his right knee disability. 38 C.F.R. § 4.71a, Diagnostic Code 5003. With regard to limitation of motion of his right knee, while he has had some limitation of motion, his range of motion has not been such that it would warrant even a compensable disability rating, even factoring in the Deluca provisions. His extension has been full throughout the appeals period, and was limited to only 130 degrees of flexion. The examiners noted that these measurements were taken without eliciting any objective evidence of pain on motion. While he has reported some pain and swelling upon use, these do not appear to have had any functional impact that would warrant a disability rating higher than his current 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2012), Mitchell. The Veteran has reported instability and that he wears a knee brace at times; however, on examination, he has not had any instability or recurrent patellar subluxation or dislocation. Therefore, a disability rating under Diagnostic Code 5257 is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). The Board has considered other Diagnostic Codes in order to provide him with the most beneficial rating for his right knee disability; however, as there is no evidence of ankylosis or dislocated semilunar cartilage of the right knee, or impairment of tibia and fibula. As such, higher ratings under these Diagnostic Codes are not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5262 (2012). Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 3.321. The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). The symptoms associated with the Veteran's right knee disability, including limitation of motion, pain and swelling, are contemplated by the criteria for rating disabilities of the knee, and are specifically considered under the criteria for Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Deluca. Thus, the evidence does not support referring this case for an extraschedular evaluation. TDIU considerations The Court has held that entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2011). The issue of TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issue does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case there has been no allegation or evidence of unemployability. On several occasions, the Veteran has reported that he works as a mechanic. Accordingly, the question of entitlement to TDIU has not been raised. ORDER An initial disability rating in excess of 10 percent for traumatic arthritis of the right knee is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs