Citation Nr: 1316674	
Decision Date: 05/21/13    Archive Date: 05/29/13

DOCKET NO. 05-38 991A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for osteochondroma of the right distal femur (claimed as a right knee disorder), including on an extraschedular basis. 


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

Veteran and father



ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel


INTRODUCTION

The Veteran served on active duty from June 2002 to January 2003.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for osteochondroma of the right distal femur and assigned a 10 percent evaluation, effective January 30, 2004. 

The Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge in January 2009. A transcript of that hearing has been associated with the claims file. 

This case was previously remanded by the Board in August 2011 and August 2012 for additional development.  

The issue of entitlement to service connection for a depressive disorder secondary to the service-connected bilateral knee disorders has been raised by the record. The claim is REFERRED to the RO for appropriate action.

A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records from May 2011 to June 2012. A supplemental statement of the case (SSOC) was issued in June 2012, which addressed this additional evidence.




FINDING OF FACT

The Veteran's osteochondroma of the right distal femur (claimed as a right knee disorder) produces symptoms of subjective complaints of pain, stiffness, weakness, fatigue, which results in a lack of endurance and instability, and which presents an exceptional or unusual disability picture. 


CONCLUSIONS OF LAW

1. The criteria for an initial schedular disability rating in excess of 10 percent for osteochondroma of the right distal femur (claimed as a right knee disorder) have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5015, 5260, 5261 (2012).

2. The criteria for an extraschedular disability evaluation of 20 percent are approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1); 3.40, 3.341, 4.16 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

The Veterans Claims Assistance Act (VCAA)

Under the VCAA, VA must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012).

The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was provided notice of the VCAA in April 2004. Additional letters were sent in May 2009, December 2009 and July 2010 which partially addressed VCAA requirements. The VCAA letters indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran also received notice in March 2006, June 2006, May 2009, December 2009, April 2010 and June 2011, pertaining to the downstream disability rating and effective date elements of her claim with subsequent readjudication in June 2006, June 2008, April 2010, June 2011, June 2012 and April 2013 SSOCs. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra.

Service connection for osteochondroma of the right distal femur has been established and an initial rating for this condition has been assigned. The claim has therefore been substantiated. See Dingess v. Nicholson, 19 Vet. App. at 490-491. Notice under the VCAA is no longer required as to this matter, because the purpose for which such notice was intended to serve has been fulfilled. Id. 

Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of her claim in this Board decision. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes private medical records, VA outpatient treatment reports, VA examinations, lay statements from a supervisor and co-worker, and statements and testimony from the Veteran, her father and her representative. 

The August 2004, May 2005, March 2006, June 2006, January 2007 and September 2009 VA examination reports and April 2006, June 2006, and November 2010 VA addendums reflect that the examiners reviewed the Veteran's medical history, documented her current medical condition, and rendered appropriate diagnoses and conclusions consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, the medical examinations are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 

This case was previously remanded by the Board in August 2012 to retrieve all outstanding VA outpatient treatment reports and to forward the claim to the Compensation and Pension Service for consideration of an extraschedular basis pursuant to 3.321(b)(1) and 4.16(b). As additional VA medical records have been obtained and associated with the record and an extraschedular evaluation was provided in March 2013, signed by a representative of the Compensation and Pension Service, the development requested by the August 2012 remand has now been satisfactorily completed and substantially complied with respect to the Veteran's claims on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 where Board's remand instructions were substantially complied with). 

In February 2010, the Veteran was afforded a Travel Board hearing before the undersigned. The transcript reflects that the Veterans Law Judge conducted the hearing in accordance with the statutory duties to "explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position," pursuant to 38 C.F.R. § 3.103(c)(2), as explained by the Court in Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

The transcript of the hearing reflects that the Veterans Law Judge identified the material issue - entitlement to a an increased rating for a right leg disability. The Veterans Law Judge also asked the Veteran about the effect of her disability on her current employment, whether her knee buckles with movement, her ability to walk on stairs, any uneven wear on her shoe pattern and the effect on other joints due to her right knee. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). The January 2009 hearing was legally sufficient. 

The Veteran has not indicated that she has any further evidence to submit to VA, or which VA must obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran has been accorded ample opportunity to present evidence and argument in support of her appeal. VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012). Moreover, given the Board's granting of an extraschedular evaluation, no prejudice presently inures to the Veteran from any due process deficiency. 





Analysis of the Claim 

The Board has conducted an extensive review of this matter and has concluded that although the severity of the Veteran's right knee disorder does not approximate findings which would support an evaluation greater than 10 percent on a schedular basis, her disorder manifests in impairment which supports the assignment of an extraschedular rating of 20 percent. 

In a March 2003 private medical record, the Veteran reported having developed knee pain during her basic training which was found to be osteochondroma of the anterior medial distal femoral metaphysis. She complained mainly of discomfort with exertion and pain could be as high as six or seven out of 10 in severity if she is not very active. She was diagnosed with osteochondroma of the right distal femur. It was noted by the examiner that this was generally a benign tumor and he suspected that it would only be a problem for her if she was going to be involved in sports or more strenuous activity; however, she was referred to orthopedic surgery to be advised of any long term implications. 

At an August 2004 VA examination, the Veteran reported symptoms of the right knee included pain, stiffness, swelling, weakness, fatigue, lack of endurance and warmth. She reported treatment consisted of aspirin and the use of ice. The Veteran reported flare ups when she walked up one flight of stairs or walked one block and that she would experience severe pain lasting 18 hours and losing 25 percent of the function of the right knee. She denied the use of any kind of prosthetic or orthotic devices, additional injury or surgery, or episodes of dislocation or recurrent subluxation. The Veteran reported having constitutional symptoms of inflammatory arthritis and that her knee would swell, get stiff and warm to the touch. She stated her right knee precluded certain jobs that required bending, stooping, squatting, or heavy lifting due to her right knee. 

A physical examination revealed no apparent acute distress and the Veteran walked into the examination room without the use of any kind of mechanical aid. Pain level was reportedly at a three out of 10 in severity. However, her right knee appeared to be swollen compared to the left with definite evidence of muscle atrophy, muscle spasm and muscle wasting. Palpation of both knees revealed no crepitus. Knees were both cool. Both popliteal spaces in the knees were free of Baker's cysts. Range of motion testing revealed flexion from 0 to 120 degrees. The Veteran was able to walk on her toes and her heels for 10 feet with either. No additional limitation were found related to pain fatigue, incoordination, weakness or lack of endurance. Stability was good for both knees. X-rays of the right and left knee were noted to be negative. The Veteran was diagnosed with patellar tendon pain syndrome. 

A February 2005 VA outpatient treatment report reflect that the Veteran complained of right knee pain and throbbing. She reported having pain with walking for long distances and her knee usually hurt when she lay down. She reported taking Tylenol which helped some. The examiner noted the right knee was larger than the left, both knees were stable and an x-ray of both knees in August 2004 was normal. She was diagnosed with knee pain. 

At a May 2005 VA examination, the Veteran reported symptoms of the right knee included pain in the right leg with prolonged walking or standing greater than 30 minutes. She had no aching or stiffness at rest. She treated pain with ibuprofen. No periods of flare up or joint disease were reported in this case. The Veteran stated that she had significant limitation of motion and significant functional impairment during acute flare ups. No corrective devices were reported being used. No surgery, injury dislocation, recurrent subluxation or inflammatory arthritis was reported. 

The Veteran reported that although she was a full time student, she had pain with walking across campus, which occurred five days a week, with prolonged walking greater than 30 minutes. Significantly, she reported that she had taken sick leave from school for five to six days in the past 12 months due to her right knee pain. A physical examination revealed that the right knee was not then painful on motion. The Veteran was noted to have a full and painless range of motion of the right knee and the stability of the right knee was intact. No additional limitations were noted with repetitive motion during the physical examination as related to pain, fatigue, incoordination, weakness or lack of endurance. No objective evidence of painful motion, heat, redness, swelling, or tenderness involving the right distal femur or right knee were note. There was no evidence of atrophy of the right lower extremity. The Veteran had no gait or functional limitations on standing or walking. X-rays of the right knee from August 2004 were noted to be within normal limits as were x-rays of the right femur. The Veteran was diagnosed with osteochondroma of the right distal femur, noted as not found. 

During a February 2006 RO hearing, the Veteran alleged that the May 2005 VA examination was not adequately done and felt "rushed." She reported that her condition had worsened since its initial rating in that it swelled up and she was unable to take care of her newborn child, in part because she was unable to lift him and walk with him. 

She also reported the knee was affecting her employability and she was not then working. She reported that she treated her right knee with ibuprofen and Tylenol and was treated at the VA medical center in Waco, Texas. The Veteran's father testified that he noticed her limping on several occasions, she had swelling in the knee, and right knee had trouble in the mornings and on cold weather days. The Veteran testified that her knee had never locked up on her but that she had fallen due to severe pain in the knee and having it give out. Other reported symptoms included weakness and pain. She reported her knee affected her at school with walking around campus and that it had caused her to lose function in walking such that she was unable to meet timely meet appointments and scheduled activities. The Veteran also testified that she had trouble climbing stairs. She stated all her treatment was at VA and she was not seeing a private physician for this disability. When asked by the hearing officer, the Veteran reported that her knee was not unstable or hyperextended. 

During a March 2006 VA examination, the Veteran reported right knee symptoms included pain at a six out of 10 in severity and mild and constant swelling. She reported no drainage procedures or instabilities present, although the latter report is unclear as she also stated that this resulted in falls once a week. The Veteran treated her symptoms with ibuprofen without relief or side-effects. No infections or use of assistive devices were reported. There were no constitutional symptoms of bone disease. The Veteran reported that she was a student and due to her right knee pain, she missed "about" the maximum allowable absences in school and had difficulty with stair climbing, standing and bending activities. She also reported that she was self sufficient. 

A physical examination revealed no deformities. There was tenderness noted in the right distal femur and in the medial aspect and superior aspect of the right knee joint. Slight soft tissue swelling was noted. There was no warmth or edema. Gait was guarded and there were functional limitations with standing and walking. Standing did not exceed 15 minutes and walking did not exceed 20 minutes. Right knee range of motion was from 0 to 110 degrees, with pain from 90 to 110 degrees. There was no limitation of pain or change in range of motion with repetitive use. The Veteran was diagnosed with chronic residuals of osteochondroma of the right distal shaft of her right femur and right knee patellofemoral pain syndrome. 

In a May 2006 statement, one of the Veteran's co-workers reported they both participated in a work study program from October 2003 to August 2004 and from August 2005 to December 2005. The friend stated that while working together, she noticed the Veteran was in pain quite often because of her knee and she spoke of swelling and severe pain. She also saw the Veteran had difficulty walking. 

In a May 2006 lay statement, the Veteran's work study program supervisor reported that the Veteran periodically had to leave work because of the increasing pain in her right knee. In addition, she reported that the Veteran once was unable to report to work of throbbing in her right knee. The supervisor noted the Veteran worked on pain management as much as she could through medications. She also stated she noticed increased problems with the Veteran's knee during the work period from August 2005 to December 2005. She stated that the medications helped but it was not unusual to see the Veteran limping to try to relieve the strain on the knee to minimize the pain. Finally she reported that, to her knowledge, the Veteran still experienced these difficulties quite regularly. 

At a May 2006 VA examination, the Veteran reported that her pain level was at a six out of 10 in severity. She reported having stiffness in the morning and mild, constant swelling in the right knee. There were no drainage procedures or instabilities present, but she reported that she had falls once a week. The Veteran treated her symptoms with ibuprofen as needed, without relief and without side effects. Flare ups of right knee pain occurred with standing or sitting over 15 minutes. The Veteran changed her posture and dress frequently. No assistive devices were reportedly used. The Veteran reported that she was a student and due to her right knee pain, she had missed "about" the maximum allowable absences from school and had difficulty with stair climbing, standing and bending activities. She also reported she was self sufficient. 

A physical examination revealed tenderness in the right distal femur in the medial aspect and the superior aspect of the right knee joint. Slight soft tissue swelling was noted. There was no warmth or edema found. The Veteran's gait was guarded and there were functional limitations noted with standing and walking. Standing was unable to exceed 15 minutes and walking was not able to exceed 20 minutes. The right knee range of motion was from 0 to 110 degrees with painful motion from 90 to 110 degrees. There was no limitation of pain and no change in range of motion with repetitive use. X-rays of the right and left knees from August 2004 and x-rays of the right femur from May 2005 were reiterated in this report and reflected normal findings. The Veteran was diagnosed with residuals of osteochondroma of the distal right femur to include retropatellar pain syndrome of the right knee. 

In a June 2006 VA addendum, the examiner found that there were flare ups in the right knee with sitting and standing in excess of 15 to 20 minutes, which was relieved with postural changes and rest. She noted no periods of incapacitation. There was no objective evidence of instability or weakness. McMurray's and Lachman's tests were negative. There were no other deformities noted. Finally, the examiner found no additional limitations of pain, fatigue, weakness, or incoordination with repetitive use.  

In a February 2008 VA outpatient treatment report, the Veteran was reportedly attending schools and working. It was noted that she had not been to the VA medical center in over two years. She complained of pain, stiffness and swelling in the knee, although which knee was not specified. She stated her present job was making her knee pain worse. The Veteran used Tylenol for the pain and had used ibuprofen previously. A physical examination of the knees revealed no tenderness and slight swelling of the right knee. The Veteran was diagnosed with arthralgia of the knee. 

In a March 2008 private medical record, the Veteran was treated for bilateral knee pain. She reported treatment with ibuprofen without much improvement. She also stated that going up and down stairs or hills was painful and even walking on level ground could be painful. She did not endorse locking or popping of the knee. She had not tried physical therapy or braces. 

A physical examination revealed tenderness to palpation on the medial border of the patella. A patellar distraction test was moderately painful. The Veteran had a positive patellar grind bilaterally. The medial collateral ligament, anterior cruciate ligament, and lateral collateral ligament were intact to examination bilaterally. There was no effusion bilaterally. Muscle mass was normal bilaterally. Skin was intact bilaterally. X-rays were noted to demonstrate good joint space in the anterior-posterior views bilaterally. Lateral patellar tilt was noted, although it was not specified to which knee this was attributed. She was diagnosed with anterior knee pain an patellofemoral dysfunction. 

During a January 2009 Travel Board hearing, the Veteran reiterated her essential reports, including diminished function, difficulty walking, swelling and periodic right knee collapse. She reported that although she was then working on an assembly line doing light work, she continued to have problems with her knee at work, as seating was limited and the knee would swell up from standing for long periods of time. She testified that her knee increasingly hurt her as the day wore on and buckled when she moved around at work. The Veteran stated that she was working part time at that time. She also reported that she tried to not go up stairs if she did not have to do so. She testified that she did attempted to not take off of work. The Veteran's father testified that he also worked in the same place as the Veteran and that they had to wear steel toed shoes as part of their uniform, so the Veteran was standing for eight hours in steel toed shoes as well. He also reported noticing she had a limp and that there were very few places to sit at their job. 

VA outpatient treatment reports from July 2009 reflect the Veteran reported having pain in the knees which was described as an aching and stiffness and occurred several times a week. She reported that she had an unsteady gait and fell a lot, usually once or twice a week, and that the falls were secondary to her knees and ankles. A normal range of motion with no effusion was noted and she was diagnosed with knee arthralgia. 

At a September 2010 VA examination, the Veteran reported her right knee had progressively worsened since the last examination, with pain at a six out of 10 in the morning, progressing to a 10 out of 10 in severity at the end of the day. Pain was aggravated by prolonged walking or standing. Treatment for this condition included medication with fair to poor response. The Veteran continued to report symptoms of pain, stiffness, weakness, decreased speed of joint motion, swelling and tenderness. She also reported the condition affected motion of the joint and that there were moderate, weekly flare ups of joint disease which lasted hours. Precipitating factors included prolonged standing and walking. The Veteran's impression on the extent of the effects of flare ups on her limitation of motion or other functional impairment included both limitation of motion and functional impairment. No constitutional symptoms or incapacitating episodes of arthritis were reported. The Veteran was able to stand for 15 to 30 minutes and walk up to one-fourth of a mile. No assistive devices or aids were reported. She reported having difficulty with activities involving squatting, bending of the bilateral knees, lifting and carrying objects which weighed more than 25 to 30 pounds and climbing on ladders. 

A physical examination revealed an antalgic gait. No inflammatory arthritis or other evidence of abnormal weight bearing was noted. Right knee tenderness, pain at rest and guarding of movement were found. There were no objective findings of crepitation, a mass behind the knee, clicking or snapping, grinding, instability, patellar abnormality, meniscal abnormality or abnormal tendons or bursae were noted. Slight swelling of the right knee was noted. Range of motion of the right knee revealed flexion from 0 to 80 degrees with normal right knee extension. Objective evidence of pain with active motion was found. Objective evidence of pain following repetitive motion was also found; however, there was no additional limitation following three repetitions of range of motion. X-rays taken in July 2009 revealed a normal right knee with no significant changes since the previous examination. 

The Veteran reported that she was working part time as a packer in a candy company. She reported her current employment lasted from the past two to five years.  She also stated she lost three weeks or 20 days in the past 12 months from work due to pain in her knees, right more than left. The Veteran was diagnosed with residuals of osteochondroma of the distal right femur to include retropatellar pain syndrome of the right knee. The effects on her usual occupation were described as significant with decreased mobility, problems with lifting and carrying and pain. The resulting work problems included increased absenteeism. Effects on the Veteran's usual daily activities included: mild effects with driving, traveling, and shopping;  moderate effects with chores, exercise, and recreation; and the prevention of sports. 

In October 2010 and November 2010, the VA examiner provided addendums to the September 2010 VA examination. However, the October 2010 addendum addressed the etiology of the Veteran's left knee and the November 2010 addendum discussed the Veteran's in-service treatment for the knee in 2002. Therefore, neither addendum is relevant in determining the severity of Veteran's current right knee disability. 

Subsequent private medical records from April 2011 to October 2011 and VA outpatient treatment reports from May 2011 to June 2012 reflect that the Veteran was treated for pain in the knees, she had a normal gait, a full range of motion of the extremities, no soft tissue abnormalities, and no joint deformities. During this period the Veteran was also evaluated with fibromyalgia which was also noted to be causing pain problems. 

In a December 2011 VA outpatient treatment report the Veteran reported that she was employed part time and had problems with work due to psychiatric symptoms including anxiety and depression. VA outpatient treatment reports in March 2012 and May 2012 reflect that she reported she was unable to work due to knee impairment and pain, although she was attending classes and working towards an associate's degree in computer networking. In May 2012 the Veteran reported that that she was unemployed but was working on her associate's degree in network administration and had 64 hours of school and average grades. 

In a March 2013 assessment for extraschedular consideration under 38 C.F.R. §  3.321(b)(1) and 4.16(b), the AMC issued an opinion regarding extraschedular consideration which was then signed by a representative of the Compensation and Pension Service. After a review of the evidence, the reviewers found that the objective evidence of record did not demonstrate that the Veteran's service-connected disabilities significantly impacted her employment since she could work in a sedentary environment. In addition they found there was clearly no unusual or exceptional disability pattern that rendered the application of the regular criteria impractical, pursuant to both 38 C.F.R. §  3.321(b)(1) and 4.16(b). The reviewers noted that there was no evidence showing that an evaluation higher than 10 percent was warranted for the right knee and there was no evidence showing a limitation that the service-connected disabilities would place on her physical job requirements and current schooling and did not rule out her ability to work in a sedentary environment. 

Schedular Evaluation: 

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In order to evaluate the level of disability and any changes in the disorder, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When, as here, the Veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling. VA must consider not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999).

Where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found - this practice is known as "staged ratings." See id. at 126.

When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The Veteran's current osteochondroma of the right distal femur has been rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5015. Diagnostic Code 5015 provides ratings for benign new growths of bones. 38 C.F.R. § 4.71a (2012). 

The rating criteria specify that the diseases listed under Diagnostic Codes 5013 to 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout, which will be rated under Diagnostic Code 5002. 38 C.F.R. § 4.71a. 

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. Id. 

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. Id. 

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. Id. 

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. Id. 

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. 

Diagnostic Code 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. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). 

Diagnostic Code 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 (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). 

Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 (providing rating for arthritis) and instability of a knee under Diagnostic Code 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). When x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003/5010 and 5257, respectively. More recently, the VA General Counsel held that a separate rating could also be provided for limitation of knee extension and flexion of the same knee joint. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).

Under the schedular rating criteria, the Veteran's osteochondroma of the right distal femur is appropriately evaluated as 10 percent and this disability does not warrant a higher schedular disability rating at any time during the pendency of the appeal. The evidence of record, including lay statements, private medical records, VA outpatient treatment reports and VA examinations, demonstrates that the Veteran's osteochondroma of the right distal femur was productive of subjective complaints of pain, stiffness, swelling, weakness, fatigue, lack of endurance, warmth, falls and instability with objective findings of pain, tenderness, swelling, guarding of movement, a mostly normal gait with one instance of an antalgic gait, and a full to limited range of motion with flexion ranging from 0 to 80 degrees at worst, but no additional limitation of motion after repetitive motion. This disability has not been productive of flexion limited to 30 degrees or extension limited to 15 degrees so as to warrant a higher disability rating under Diagnostic Codes 5260 or 5261. 38 C.F.R. § 4.71a. 

Other appropriate diagnostic codes for application have been considered. However, as the Veteran's service-connected right knee does not reflect findings of ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, or an impairment of the tibia or fibula, at any time prior to during the pendency of the appeal and the Veteran herself has specifically denied these symptoms in various VA examinations and hearing testimony throughout the duration of the appeal, Diagnostic Codes 5256, 5257, 5258 and 5262 do not apply. 38 C.F.R. § 4.71a. The Board also notes that 10 percent is the maximum rating available for removal of semilunar cartilage under DC 5259. 

Absent 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, which is not the case here as the Veteran's right knee disability consists of only one joint/joint group and x-rays throughout the duration of the appeal revealed normal findings, a higher disability rating is not warranted under Diagnostic Codes 5003 and 5010. See 38 C.F.R. §§ 4.45, 4.71a, Diagnostic Codes 5003, 5010. 

Extraschedular Evaluation

The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); see also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedural Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008).

If the rating schedule 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 regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra.

In this case the Board referred the claim to the Director of the Compensation and Pension Service for a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. In part, the Board noted the Veteran's continued complaints of pain, numerous flare-ups, swellings, and temporal limitations of functioning. Remand directives, pages 4-7. see 38 C.F.R. § 3.321(b)(1) After review of the evidence of record, a March 2013 evaluation was furnished and signed by a representative of the Compensation and Pension Service in which it was determined that the objective evidence of record did not demonstrate that the Veteran's service-connected disabilities significantly impacted her employment since she could work in a sedentary environment. 

Under 38 C.F.R. § 3.321(b)(1), the "governing norm" for the finding of an exceptional case is that of an exceptional or unusual disability picture with such related factors as marked interference with employment . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1).

The Board finds such an unusual disability picture is present in this matter. Although the Veteran has not manifested clinical schedular findings during the course of numerous VA examinations, throughout the appellate period, the Veteran has reported knee collapse and such pain as to impair her work study participation; employment as a packer, and her daily functioning while attending school. 

The severity of a disorder for rating purposes is not measured solely by medical evidence. Instead, all relevant evidence generated by lay persons, who report matters generally so reportable by those medically untrained, is relevant. Here, the lay statements and testimony by the Veteran, her father, her supervisor and her co-worker all indicate that the Veteran has both continued pain which both greatly interferes with her work and school; and periodic collapse of the knee, albeit without medical treatment. 





The Board will therefore fashion an appropriate extraschedular disability rating, and assign a 20 percent disability rating for the entirety of the appellate period. 


ORDER

A schedular evaluation in excess of 10 percent for a right knee disorder is denied.

An extraschedular evaluation of 20 percent for a right knee disorder is granted.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs