Citation Nr: 1315640 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 09-41 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to a compensable rating for left knee patellofemoral syndrome. 2. Entitlement to a compensable rating for right knee patellofemoral syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 2006 to March 2009. The case is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for right and left patellofemoral syndrome, rated 0 percent each. The Veteran's claims file is now in the jurisdiction of the Providence, Rhode Island RO. The Veteran had also initiated an appeal in the matter of the rating for his posttraumatic stress disorder (PTSD). In August 2011, prior to the promulgation of a decision in the appeal, the RO received notification from the Veteran that he intended to withdraw his appeal seeking an increased rating for PTSD; that matter is not before the Board. The matter of the rating for right patellofemoral syndrome is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDING OF FACT The Veteran's left patellofemoral syndrome is not shown to be manifested by limitation of flexion to 45 degrees or less, extension limited at 10 degrees or more, subluxation or lateral instability; it is essentially asymptomatic and is not shown to cause any functional impairment. CONCLUSION OF LAW A compensable rating for left patellofemoral syndrome is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (Codes) 5003, 5019, 5256-5263 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). An October 2009 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating. An October 2011 supplemental SOC (SSOC) readjudicated the matter after the appellant and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). A November 2009 letter also provided him with general disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran's pertinent treatment records have been secured. The RO arranged for a VA examination in April 2011. Regarding the left knee disability, the Board notes the report of that VA examination to be adequate for rating purposes. [The adequacy of the examination as to the right knee disability is discussed in the Remand below.] The Veteran was scheduled for another VA examination in September 2011; however, without giving cause, he failed to appear. [He reported for a VA examination scheduled in connection with another claim, pertaining to PTSD.] When a claimant fails (without good cause) to report for a VA examination scheduled in conjunction with an original compensation claim, the claim shall (emphasis added) be rated based on the evidence of record. 38 C.F.R. § 3.655(b). The Board finds that the record as it stands includes adequate competent evidence (as to the Veteran's left knee disability) to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earnings capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). There is no specific diagnostic code for patellofemoral syndrome. The RO has rated the Veteran's left knee disability by analogy to Code 5019 for bursitis. Based on the manifestations shown, the Board finds this analogy to be appropriate. Bursitis is rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Codes 5019 and 5003. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When the limitation of motion is noncompensable under the appropriate diagnostic code, a 10 percent rating is for application for each such major joint affected by limitation of motion, to be combined, not added under Code 5003. 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, Code 5003. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Code 5260. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71a, Plate II. Extension of a leg limited to 5 degrees or less warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Code 5261. In addition, the rating schedule provides for a 10 percent rating for knee disability manifested by slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. On September 2008 examination prior to separation from service, the Veteran underwent an examination in connection with his claim for VA benefits. It was noted that the left knee was not tender on palpation, but had some crepitus. Range of motion studies revealed left knee flexion to 136 degrees and extension to 0 degrees. The examiner noted that after repetitive use, there was no pain, fatigue, weakness, lack of endurance, or incoordination. Medial and lateral (M&L) collateral stability, anterior and posterior (A&P) cruciate stability, and M&L meniscus tests were negative. Testing for instability with varus-valgus, drawer, and McMurray sign with M&L collateral, A&P cruciate, and M&L meniscus was negative. X-rays of the knee were negative for any abnormality. Patellofemoral syndrome was diagnosed. Postservice, the Veteran was seen at the Providence VA medical center (VAMC). May 2009 treatment notes show he reported constant pain from knees to toes, ranging from 4 to 10 out of 10 and described a dull pain sometimes superimposed by sharp pain. He reported the pain was worse in colder or more humid weather, and with prolonged standing or walking. Treatment included Vicodin. The Veteran reported he was able to exercise and work out. Further treatment records reflect he gets regular physical activity. On April 2011 VA examination, it was noted the Veteran walked from the waiting room to the examining room with a good gait and good posture, without pelvic tilt or limp. He transferred from the chair to the examining table without any difficulty, and was able to remove his pants and shoes without difficulty. Physical examination of the left knee showed no palpable fluid or tenderness. Range of motion studies revealed full extension (carried out four times) without pain, weakness, fatigue or lack of endurance. With a two pound weight the knee extended fully three times without pain, weakness, fatigue or lack of endurance. Flexion was from 0 to 140 degrees (four times) without pain, weakness, fatigue or lack of endurance. There was good strength resistance with both flexion and extension. There was no increased pain on repetitive movements. The medial collateral ligaments were tight, the anterior and posterior cruciate ligaments were tight, and a slide test was negative. An attempt to move the patella on examination failed; the patella did not move. There was no tenderness of the left patella. The examiner noted the Veteran had no complaints pertaining to the knee, did not use assistive devices, and was a student whose activities of daily living were not affected. The Veteran did not report any flare-ups, and the examiner noted the knee joint appeared to be stable. The examiner concluded that the examination of the Veteran's left knee was normal, and that there was no functional impairment. The Veteran's left knee is essentially asymptomatic. There is no limitation of motion, as both extension and flexion are full as measured; arthritis is not shown by x-ray. Therefore a 10 percent rating under Code 5003 is not warranted. Flexion of the left leg has exceeded 60 degrees; therefore a compensable rating under Code 5260 is not warranted. Extension has been measured as full; therefore a compensable rating under Code 5261 is not warranted. Application of other diagnostic Codes for rating knee disability (5256, 5257, 5258, 5259, 5262, 5263) would be inappropriate as the Veteran's left patellofemoral syndrome does not include the pathology required in the criteria for those Codes (ankylosis, recurrent sublation or lateral instability, dislocated or post-removal semilunar cartilage, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a. Notably, no functional impairment is shown even with factors such as pain and use considered. An increased rating for the Veteran's left knee disability is not warranted under any applicable criteria. The Board has considered whether referral for extraschedular consideration is warranted. As the left knee is essentially asymptomatic, there is no basis for such referral. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, there is no objective evidence that the service-connected left knee disability impacts on the Veteran's employability. He has indicated that he is a student seeking a nursing degree, does very well in school, and works in construction part-time during the summers. The matter of entitlement to a total rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A compensable rating for left patellofemoral syndrome is denied. REMAND As was noted above, the Veteran underwent a VA examination for his knees in April 2011. The Board finds this examination inadequate for rating purposes as it relates to his right knee disability. Specifically, the examiner failed to record the measurements for right knee flexion (limitation of which is a criterion for rating the disability). An attempt to have the Veteran reexamined is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for an orthopedic examination of the Veteran to assess the current severity of his right patellofemoral syndrome. The Veteran's claims file (including this remand) must be reviewed by the examiner in conjunction with the examination. The examiner must also be provided a copy of the criteria for rating knee disabilities, and the findings reported must be sufficiently detailed to allow for rating under those criteria, [i.e., note the presence or absence of each symptom in the criteria for rating knee disabilities (under all applicable Diagnostic Codes)]. The findings must include complete ranges of motion (and any limitations due to pain/on use); notation whether there is arthritis, and specific findings as to whether there is subluxation or instability and, if so, the degree of such. The examiner should also comment on the expected impact of any symptoms found on the Veteran's everyday and occupational functioning, and must explain the rationale for all opinions. 2. The RO should then review the record and re-adjudicate the matter of the rating for right patellofemoral syndrome. If a compensable rating remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs