Citation Nr: 1313557 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 04-23 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an increased rating for right knee chronic synovitis and patellar chondromalacia, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for left knee chronic synovitis and patellar chondromalacia, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to March 1976, and had subsequent reserve service. This case is on appeal to the Board from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The case has been remanded on multiple occasions, most recently in July 2012. Currently, the RO has rated each knee as 10 percent disabling prior to July 14, 2009, 20 percent disabling from July 14, 2009, and 10 percent disabling from January 1, 2011. The RO proposed in June 2010 to reduce each rating from 20 percent to 10 percent, as it felt that the increase for each knee to 20 percent had been clear and unmistakable error. Then, in September 2010, it changed each rating to 10 percent, effective from January 1, 2011. FINDINGS OF FACT 1. Prior to July 14, 2009, each knee disability was manifested by pain with some impairment of motion; there was no limitation of flexion to 30 degrees; there was no limitation of extension to 10 degrees; there was no slight recurrent subluxation or lateral instability. 2. From July 14, 2009 to January 11, 2011, each knee disability was manifested by pain with some limitation of motion; there was no limitation of flexion to 15 degrees or limitation of extension to 10 degrees; there was no slight recurrent subluxation or lateral instability. 3. From January 11, 2011, each knee disability is manifested by pain with some limitation of motion; there is no limitation of flexion to 30 degrees; there is no limitation of extension to 10 degrees; there is no slight recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent prior to July 14, 2009, in excess of 20 percent from July 14, 2009, and in excess of 10 percent from January 1, 2011 for right knee chronic synovitis and patellar chondromalacia are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5020-5260 (2012). 2. The criteria for a disability rating in excess of 10 percent prior to July 14, 2009, in excess of 20 percent from July 14, 2009, and in excess of 10 percent from January 1, 2011 for left knee chronic synovitis and patellar chondromalacia are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5020-5260 (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 June 2003. 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 VA medical records; assisted the Veteran in obtaining evidence; examined the Veteran for his knee disabilities in 2003, 2007, 2009, 2010, 2011, and 2012; and afforded the Veteran the opportunity to give testimony before the Board. The Board finds the several evaluations of the knees to be adequate for rating purposes. The examinations reported results to allow for application of VA rating criteria, and there is now a specific opinion addressing recurrent subluxation and lateral in stability. 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 July 2012 remand by obtaining the VA medical opinion sought and readjudicating the 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. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The RO has rated the Veteran's disabilities under Diagnostic Code 5020-5257. Diagnostic Code 5020 is for synovitis, which is to be rated as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 indicates that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Code for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (degenerative arthritis). Since the rating issues involve the knees, the Board notes at this point that normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II (2012). 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. 38 C.F.R. § 4.71a, Diagnostic Code 5261. 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). In addition to the ratings based on limitation of motion, a separate rating may be assigned for instability of the knee. See VAOPGCPREC 23-97 (July 1, 1997). 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257. 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 U.S.C.A. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. 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). With any form of arthritis, painful motion is an important factor of disability. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as at least minimally compensable. 38 C.F.R. § 4.59. Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion in degrees. Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). 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 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 analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Having carefully considered the Veteran's contentions in light of the evidence of record (including that found on Virtual VA, VA's electronic data storage system) and the applicable law, the Board finds that ratings in excess of those currently assigned are not warranted at this time. 38 C.F.R. § 4.7. On VA examination of the Veteran's knees in 2003, there was no significant subluxation on anterior or posterior drawer, and the collateral ligaments were intact in valgus and varus stress. Left knee pain restricted left knee flexion to 115 degrees. Right knee range of motion was reduced to 110 degrees of flexion with the onset of pain. Each knee had full extension. The right quadriceps hamstrings mechanism was slightly smaller in circumference, at 6 inches above the knee, with a 1 centimeter discrepancy. Motor strength, however, was 5/5 throughout each lower extremity. On VA evaluation in April 2004, the Veteran had a full passive range of motion of each knee and no sign of instability. Anterior drawer was negative. On VA examination in July 2007, the Veteran indicated that he was employed and generally did not miss any work due to his knees. On examination, he moved freely and had a slightly antalgic gait. His knees were stable to valgus, varus, anterior drawer, and McMurray, although he had mild laxity bilaterally, left greater than right. It was stable. Left knee range of motion was from 0 to 125 degrees with pain beginning at 115 degrees. On the right, he had extension to 0 degrees with mild pain in the end range, then he was fine until 110 degrees of flexion, but could go to 135 degrees. Strength was normal, and he could heel, toe, and tandem walk without any degree of difficulty. On VA examination on July 14, 2009, the Veteran reported that with a flare, he had increased pain and decreased range of motion by about 15 percent, as well as weakness, fatigue, and incoordination. He said his right knee would give way if he went up 4 or 5 steps. Typically, he could catch himself. He denied locking but indicated that he had swelling. He thought he could maybe walk a half mile. He reported that he could do his work without limits. The Veteran could do a full squat with difficulty. Knee flexion was to 125 degrees bilaterally, and extension was to 0 degrees. Strength and sensation were normal in the lower extremities. Varus-valgus, anterior-posterior drawer, and McMurray's were all normal. Both knee joints were stable with no effusion. There was no change in active or passive range of motion during repeat motion testing, and no additional loss of range of motion or functional loss due to pain, weakness, impaired endurance, fatigue, incoordination, or flare-ups. On VA examination in February 2010, the Veteran reported flare-ups 6 or 7 times a year, with pain being 8/10 for 8-10 hours. He reported that his right knee gives out on him with stairs. He could do his work without limits. His knees each flexed to 140 degrees with pain at 140 degrees, and extended to 0 degrees with no pain. Repetitive motion increased the pain on the right, but changed nothing on the left. Motor strength was normal. Varus, valgus, anterior and posterior drawer, and McMurray were all normal bilaterally. Both joints were stable with respect to testing on examination. There was no change in active or passive range of motion during repeat motion testing, and no additional losses of range of motion or functional loss of the involved joints due to pain, weakness, impaired endurance, fatigue, incoordination, or flare-ups. The examiner noted that the Veteran complained of his right knee giving out a few times a month. However, the examiner could not elicit any laxity on examination. He felt that the Veteran had mild subjective instability based on history, but objectively, his knees were stable on examination, and there was no subluxation or lateral instability in either knee. The diagnosis was bilateral chondromalacia with MRI evidence of a right chronic partial anterior cruciate ligament tear. On VA examination in February 2010, the Veteran reported that his knees bothered him with prolonged standing and sitting, or with heavy activity. On examination, he had a normal appearing gait. His right knee showed some laxity with anterior drawer testing and a soft end point. Otherwise, his right knee anterior cruciate ligaments and posterior, medial, and lateral collateral ligaments appeared intact. He had no appreciable pain with McMurray test. His left knee had an intact anterior cruciate ligament, and intact posterior, medial, and lateral collateral ligaments, and there was no pain on McMurray testing. The assessment was osteoarthritis of the knees, with what appeared to be a chronic anterior cruciate ligament injury on the right side. The examiner felt that the Veteran was dealing with osteoarthritis findings rather than meniscal injury or anterior cruciate ligament pathology. On VA evaluation in July 2010, the Veteran had a full range of motion in his lower extremities and full strength. In November 2010, range of motion was "decreased" and strength was equal side to side in the lower extremities. On VA examination in March 2011, the Veteran complained of continued pain and some left knee instability, but none on the right. He stated that both knees would occasionally lock up on him. He reported constant pain with flare-ups of increased pain on a daily basis that would last for 1 hour. On examination, flexion was to 115 degrees bilaterally with pain beginning at 70 degrees bilaterally. The Veteran could extend both knee joints fully to 0 degrees with pain at the end range of both knee joints. Both knee joints were stable to varus, valgus, anterior, and posterior drawer testing, and McMurray's was negative bilaterally. No joint effusion was seen in either knee. His lower extremity strength was 5/5 with normal muscle tone and bulk in both legs. There was no change in active or passive range of motion during repeat motion testing and no additional losses of ranges of motion or loss of function of the involved joints due to pain, weakness, impaired endurance, fatigue, incoordination, or flare-ups. The diagnoses were right and left knee chondromalacia, with right knee chronic partial anterior cruciate ligament tear. The Board remanded the case to the RO in July 2012 for a VA medical opinion on whether the Veteran had recurrent subluxation and/or lateral instability of either knee, and if so, whether it was slight, moderate, or severe in degree. In August 2012, a VA examiner indicated that he reviewed the claims folder and found no evidence of subluxation or lateral instability in either knee per any of the examination reports in the claims folder. It was the examiner's opinion that there was no recurrent subluxation and/or lateral instability in either knee. Based on a review of the evidence, the Board finds that the criteria for a rating greater than 10 percent for the left or right knee are not met or nearly approximated prior to July 14, 2009, or from January 1, 2011. None of the range of motion testing suggested limitation of flexion to anywhere near 30 degrees, even with additional functional loss due to DeLuca factors is considered. There was also no evidence to warrant a compensable rating under limitation of extension criteria. Recurrent subluxation or lateral instability of either knee is not shown prior to July 14, 2009 or from January 1, 2011, moreover. All knee ligament examinations during these time periods have shown that the ligaments are stable, and the examiner in August 2012 indicated that he had reviewed the Veteran's claims folder which included all of the examination and treatment reports mentioned above, and found no evidence of subluxation or lateral instability in either knee, and opined that the Veteran does not have it. Slight or more recurrent subluxation or lateral instability is not shown or nearly approximated prior to July 14, 2009 or from January 1, 2011. For the period from July 14, 2009 to January 1, 2011, the criteria for a rating greater than 20 percent for the left or right knee are not met or nearly approximated. The evidence for this time period does not show that flexion was limited to near 15 degrees, even when DeLuca is considered. There is also no persuasive evidence of limitation of extension during this time period to warrant a separate compensable rating under Code 5261. Recurrent subluxation or lateral instability of either knee was not shown during this time period, moreover. All knee ligament examinations (in July 2009 and February 2010) have shown that the ligaments are intact or stable; and the examiner in 2012 indicated that he had reviewed the Veteran's claims folder which included all of the examination and treatment reports mentioned above, and found no evidence of recurrent subluxation or lateral instability, and opined that the Veteran does not have it. The Veteran's reports on VA examination in July 2009 and February 2010, that his right knee would give way on stairs, has been considered. However, the preponderance of the evidence, particularly the normal objective findings regarding the stability of his ligaments, is considered more probative than his statements. The Veteran noted in January 2004/March 2005 that doctors have indicated that he has severe arthritis of both knees, and that one day he may need knee replacements. He indicated in October 2007 that he has symptoms on weightbearing. In July 2010, he indicated that he takes medication and has had shots for his knee disabilities, and that they are painful. However, the rating criteria above apply, based on the degree of impairment which is currently present, and they have been considered and applied, with the results warranting no more than the ratings currently assigned. The rating criteria contemplate functional impairment, including that caused by pain and on weightbearing, and this has been considered in arriving at the Veteran's disability ratings. In sum, no more than a 10 percent rating is warranted for either knee prior to July 14, 2009 or from January 1, 2011, and no more than a 20 percent rating is warranted from July 14, 2009 to January 1, 2011. Extra Schedular Considerations 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 Veteran's service-connected disabilities are so 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) (2012). 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 disabilities 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). In this case, the Board finds that the rating criteria used to evaluate the Veteran's service-connected disabilities reasonably describe his disability levels and symptomatology. 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 disability. 38 C.F.R. § 4.1 (2012). 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). The Veteran's October 2007 report that he had been unable to continue in his career in law enforcement, since his knees will not withstand the rigorous running required at a law enforcement academy he had to attend, and that the wages for a police officer are 2-3 times what he earns now, has been considered. However, the Board stresses that ratings are to be based on the average impairments of earning capacity resulting from the disease or injury in question, under 38 U.S.C.A. § 1155, and reiterates that the rating criteria reasonably describe his disability levels and symptomatology. After reviewing the totality of the evidence, the Board finds that the preponderance of the evidence is against entitlement to ratings in excess of those assigned by the RO. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Should the disability increase in severity in the future, the Veteran may always file a claim for an increased rating. Lastly, the Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, an unemployability claim has not been reasonably raised by the record. Instead, the reports are to the effect that the Veteran remains employed and that the disabilities at issue have little impact on his employment. ORDER A disability rating in excess of 10 percent prior to July 14, 2009, in excess of 20 percent from July 14, 2009, and in excess of 10 percent from January 1, 2011 for right knee chronic synovitis and patellar chondromalacia is not warranted. A disability rating in excess of 10 percent prior to July 14, 2009, in excess of 20 percent from July 14, 2009, and in excess of 10 percent from January 1, 2011 for left knee chronic synovitis and patellar chondromalacia is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs