Citation Nr: 1313786 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 09-23 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial rating higher than 10 percent for left knee status post surgery. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from July 2001 to August 2008. This matter was received by the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. It is on appeal from an October 2008 rating decision of the RO in Salt Lake City, Utah. In March 2010, the RO in Waco, Texas, granted a separate 10 percent rating for scars of the left knee and notified the Veteran of his right to appeal the decision. An appeal of that decision has not been perfected. Thus, it is not currently before the Board and will not be considered in this decision. The Veteran was scheduled to present testimony before a Veterans Law Judge in March 2013, but did not report to the hearing. As the record does not contain further explanation as to why he did not report to the hearing, or any additional requests for an appeals hearing, the Board deems the request for an appeals hearing withdrawn. See 38 C.F.R. § 20.704 (2012). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. Since the August 27, 2008, date of service connection, the Veteran's left knee disability has been primarily manifested by pain and limitation of flexion to no more than 125 degrees affecting the ability to kneel, crouch, squat, or engage in activities requiring extensive walking or lifting, and more severely affecting his ability to run or play sports. 2. The Veteran's left knee disability has at no time more closely approximated flexion of the leg limited to 30 degrees than flexion of the leg limited to 45 degrees, or approximated extension of the leg limited to 10 degrees or more. CONCLUSION OF LAW The criteria for an initial rating higher than 10 percent for left knee status post surgery have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.20, 4.27, 4.40, 4.45, and 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5256-5263 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The award of service connection for left knee status post surgery represented a substantiation of the Veteran's original claim, and thus the filing of a notice of disagreement with the initial rating did not trigger additional 38 U.S.C.A. § 5103(a) notice requirements. Therefore, any defect as to notice is not prejudicial. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 134 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Moreover, the Veteran was notified of regulations pertinent to the establishment of a disability rating and an effective date and in a May 2008 letter. Dingess/Hartman, 19 Vet. App. at 478. The Veteran's service treatment records and identified private medical records have been obtained. Also, the Veteran was provided VA examinations in June 2008 and September 2009. These examinations and reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination reports were based on examination of the Veteran by examiners with appropriate expertise. While the claims file was not available for review during the Veteran's examinations, the examiners reported an accurate history of the Veteran's disability, and the September 2009 VA examiner reviewed relevant medical records. Moreover, the instant claim is one for a higher rating, and the examiners reported the current severity, symptomatology, and manifestations of the Veteran's disability in such a manner as to allow VA to rate such disability in accordance with the appropriate rating criteria. 38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007). Also, the Veteran's most recent VA examination of his disability was in September 2009. When a veteran claims that his condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). While a new examination is not required simply because of the time that has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination or other evidence of worsening. VAOPGCPREC 11-95 (1995). As there has been no assertion of an increase in severity since the last examination or other evidence of worsening in this case, remand for further VA examination is not warranted. There is no indication in the record that any additional evidence relevant to the issue on appeal is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). II. Analysis Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability is currently rated under Diagnostic Code (DC) 5260-5024, and is thus rated by analogy under the criteria for tenosynovitis. See 38 C.F.R. §§ 4.20, 4.27. Tenosynovitis is rated as arthritis under DC 5003. See 38 C.F.R. § 4.71a, DCs 5003, 5024. DC 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. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 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 DC 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. DC 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2012). See also DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, by way of history, service treatment records reflect that in December 2007 the Veteran was treated for complaints of three years of left knee popping and locking, and stated that he could feel a lateral protrusion when it locked and had to manually reduce this protrusion to unlock the knee. He reported that he had suffered a hyperextension of the knee with swelling approximately three years prior. In January 2008, he underwent arthroscopy surgery for removal of loose body, excision of osteochondral mass. In February 2008, it was noted that films revealed another loose body of the knee, and the Veteran underwent another arthroscopic loose body removal. The report of a June 2008 VA examination reflects that the Veteran had undergone left knee arthroscopy in January 2008 for loose body removal, and in February 2008 for residual loose body not removed with the January 2008 surgery. The Veteran reported that in 2004 he sustained a significant impact to the left knee, which he described as a hyperextension injury, but no fall or trauma. He reported that presently pain was present all the time at an intensity of 2, related to activities such as sustaining flexion of the knee, and that more activities involving flexion would bother the knee. He stated that he could not sit Indian style, and that going down the stairs, kneeling, crouching, and squatting would bother the knee with the pain level extending up to a 4, which was instantaneous and then passing. The location of the pain was the medial/lateral region on the sides. He reported no weakness but stiffness and slight swelling, no heat or redness, and no instability, giving way, or locking. He reported fatigability and lack of endurance, but no routine treatment and no specific flare-ups since surgery. He also reported being on light or modified activity since his surgery in February 2008, and that he had not engaged in usual every day activities that might require increased, walking, running, or lifting. He further reported additional limitation of motion or functional impairment during flare-ups, but no use of crutches, brace, cane, corrective shoes or other devices, no episodes of dislocation, recurrent subluxation, or inflammatory arthritis, no limiting effect of the condition in his future, job/occupation at the time, and no effect on daily activities. On examination, gait was steady and normal with posture straight and alignment normal. Left knee was symmetrical with the right with no redness, swelling, heat, effusion, or deformity. There was no functional limitation noted with standing or walking, and no uneven wearing of the Veteran's shoes. There was no guarding by the Veteran with manipulation and range of motion, motor and sensory function was intact distally, and there was pain only at the end point of full flexion. Flexion was 135 degrees passively and 125 degrees activity, with pain from 125 degrees passively and at the end point of 125 degrees actively. Extension was to 0 degrees. Pain was noted to have been the biggest limiting factor with motion. Medial and lateral collateral ligaments were intact with no laxity of motion with varus/valgus stress, anterior and posterior cruciate ligaments were intact, and McMurray's test was negative. It was noted that the examiner could not express, without resort to mere speculation, additional limitation by pain, fatigue or lack of endurance due to repetitive use during or not during a flare-up, and that examination findings were based on a minimum of three repetitions of range of motion. In his June 2009 substantive appeal, the Veteran asserted that he had pain and limited functionality due to his knee surgery. He also asserted that his ability to sit, stand, walk and run was extremely limited, and that he had deformity of the knee as a result of his surgery. The report of a June 2009 VA examination reflects that the Veteran reported no deformity, giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation, subluxation, locking, effusions, inflammation, or flare-ups. There were no constitutional symptoms of arthritis, standing limitations, or walking limitations. The Veteran reported that he was unable to run any more. On examination, gait was normal, and there was no bone loss or inflammatory arthritis. There was some redness, but no crepitation, mass, clicks, snaps, grinding, instability, patellar abnormality, meniscus abnormality, tendon or bursae abnormality, or other knee abnormalities. Range of motion showed no objective evidence of pain with active motion on the left side, and flexion was from 0 to 130 degrees in both knees, and extension was to 0 degrees. There was no joint ankylosis. X-rays of the knees showed bilateral (right greater than left) femoral metaphyseal osteochondromatosis. It was noted that the Veteran's occupation was as a school teacher, that he was currently employed full time and had been for one to two years, and that he had not lost work during the last 12-month period due to his knee disability. The diagnosis was chondromalacia of both knees, with no significant effects on occupation, and no effects on usual daily activities except for sports, where effect was reported as severe. Considering the pertinent evidence in light of the governing legal authority, the Board finds that an initial rating higher than 10 percent for left knee status post surgery must be denied. The record reflects that, since the August 27, 2008, date of service connection, the Veteran's left knee disability has been primarily manifested by pain and slight limitation of flexion affecting the ability to kneel, crouch, squat, or engage in activities requiring extensive walking or lifting, and more severely affecting his ability to run or play sports. The most to which flexion has been noted to be limited has been to 135 degrees passively and 125 degrees activity, with pain from 125 degrees passively and only at the end point of 125 degrees actively, and no guarding by the Veteran with manipulation and range of motion; even considering limitation due to pain, such range of motion findings are more than twice the 60 degrees of flexion that would only warrant a noncompensable rating under DC 5260. Extension has consistently been noted to be to 0 degrees with no pain. No weakness of the knee has been reported by the Veteran or noted on examination. Also, while the Veteran reported fatigability and lack of endurance in June 2008, there were no objective findings indicating such symptomatology on either June 2008 or June 2009 examination. Moreover, even considering such reports of fatigability and lack of endurance, as well as his reported flare-ups after more intense use of the knee reported in June 2008, at which time his knee pain would become 4 out of 10, the Board finds that, given the symptoms and functionality described above, the Board's left knee does not more closely approximate flexion of the leg limited to 30 degrees than flexion of the leg limited to 45 degrees, or approximate extension of the leg limited to 10 degrees or more. While the Board acknowledges that knee pain results in some functional impairment, it is not equivalent to the impairment contemplated by a 20 percent rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Thus, neither a rating higher than 10 percent under DC 5260, nor a separate, compensable rating under 5261, is warranted in this case. The Board has considered DC 5259 for removal of semilunar cartilage, symptomatic. However, no higher rating than 10 percent is available under this code. See 38 C.F.R. § 4.71a, DC 5259. Furthermore, the Veteran's left knee symptoms, discussed above, of pain and limitation of motion affecting functionality of the knee are contemplated in his current rating under DC 5260-5024. Therefore, a separate rating under DC 5259 for such symptomatology is not permissible. See 38 C.F.R. § 4.14; See also Brady v. Brown, 4 Vet. App. 203, 206 (1993); Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Board also notes the Veteran's assertions in his June 2009 substantive appeal, that he had pain and limited functionality due to his knee surgery, that his ability to sit, stand, walk and run was extremely limited, and that he had deformity of the knee as a result of his surgery. The Veteran is competent to report matters within his own personal knowledge. See Layno, 6 Vet. App. At 469. As discussed above, the Veteran's left knee pain and functional limitation, including significant limitation of his ability to run, is contemplated in his current rating. However, on examination, the Veteran has not reported, and objective findings have not shown, extreme limitation in sitting, standing, or walking, or any deformity of the knee. To the extent that the Veteran reports symptoms or functional impairment not consistent with his own reports on examination and the objective medical examination findings, the Board finds such assertions not to be credible. The Board has also considered DCs 5256, 5257, 5258, 5262, and 5263. However, the record does not reflect, and the Veteran has not contended, that at any time during the appeal period there has been ankylosis, lateral instability or recurrent subluxation, dislocated cartilage, malunion or nonunion of the tibia and fibula, or genu recurvatum of the left knee. See 38 C.F.R. § 4.71a, DCs 5256, 5257, 5258, 5262, and 5263. The Board has also considered the applicability of other diagnostic codes for rating the Veteran's disability, but finds that no other diagnostic code provides a basis for higher rating. The rating codes discussed above specifically pertain to disability of the knee. The Veteran's disability has not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule. Also, this case should not be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b). 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, which involves a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board recognizes that the Veteran's disability has been productive of functional impairment. The assigned rating of 10 percent rating reflects that his disability is productive of impairment in earning capacity. However, the record does not reflect that the average industrial impairment from his disability would be in excess of that contemplated by the assigned rating. The Veteran's left knee disability has been primarily manifested by pain and limitation of flexion to no more than 125 degrees affecting the ability to kneel, crouch, squat, or engage in activities requiring extensive walking or lifting, and more severely affecting his ability to run or play sports. However, such manifestations are reasonably contemplated by the schedular criteria for a 10 percent rating under the applicable diagnostic codes, discussed above, which contemplate knee disability productive of limitation of flexion to 45 degrees. The record does not reflect that the Veteran's right knee disability has caused impairment in earning capacity above what would be average for such disability. Also, the record does not reflect that the Veteran's disabilities have been productive of marked interference with employment, and there is no indication in the record of frequent hospitalizations related to such disability. The Veteran's knee disability has been consistently noted by both the Veteran and VA examiners not to significantly affect his occupation, and in June 2009 he stated that he had not lost work during the last 12-month period due to his knee disability. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration. Finally, there has been no assertion or evidence that the Veteran is unemployable due to his service-connected disability. The Veteran has been noted to be employed full time as a school teacher, no significant effects on his occupation have been noted, and in June 2009 the Veteran stated that he had not lost work during the last 12-month period due to his knee disability. Therefore, entitlement to a total disability rating based on individual unemployability is not raised by the record and will not be further addressed in this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, an initial rating higher than 10 percent for left knee status post surgery is not warranted, and there is no basis for staged rating of the Veteran's disability pursuant to Fenderson. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert, 1 Vet. App. at 53-56. ORDER An initial rating higher than 10 percent for left knee status post surgery is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs