Citation Nr: 1317050	
Decision Date: 05/24/13    Archive Date: 05/31/13

DOCKET NO.  08-28 032	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1. Entitlement to an initial compensable rating for right foot plantar fasciitis prior to January 15, 2013 and in excess of 10 percent thereafter.

2. Entitlement to an initial compensable rating for left foot plantar fasciitis prior to January 15, 2013 and in excess of 10 percent thereafter.

3. Entitlement to an initial compensable rating for right knee chondromalacia patella prior to January 15, 2013.

4. Entitlement to initial ratings in excess of 10 percent for right knee chondromalacia patella and 10 percent for right knee instability from January 15, 2013 forward.
 

REPRESENTATION

Veteran represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel


INTRODUCTION

The Veteran served on active duty from May 1987 to November 2007. 

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision issued in January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.   

The January 2008 rating decision granted service connection for right and left foot plantar fasciitis and right knee chondromalacia patella and assigned initial noncompensable ratings for each.  The Veteran then appealed with regard to the ratings assigned.  In a February 2013 rating decision, the RO granted a 10 percent rating each for right and left foot plantar fasciitis and right knee chondromalacia patella and a 10 percent rating for right knee disability, each effective January 15, 2013.  However, as these ratings are still less than the maximum benefit available, the appeal is still pending.  AB v. Brown, 6 Vet. App. 35, 38 (1993). 


FINDINGS OF FACT

1. Resolving all reasonable doubt in the Veteran's favor, throughout the appeal period, his right foot plantar fasciitis was productive of moderate disability as a result of chronic, moderate pain and a moderate impact on daily activities such as chores and shopping.

2. Resolving all reasonable doubt in the Veteran's favor, throughout the appeal period, his left foot plantar fasciitis was productive of moderate disability as a result of chronic, moderate pain and a moderate impact on daily activities such as chores and shopping.
3. Prior to May 5, 2008, the Veteran's right knee disability was manifested by range of motion from 0 to 120 without objective evidence of painful motion, instability, subluxation, or arthritis.

4. From May 5, 2008 to January 15, 2013, the Veteran's right knee disability was manifested by degenerative joint disease of the right knee, as established by X-ray, with objectively painful noncompensable limitation of motion to no less than 90 degrees flexion. 

5. From January 15, 2013 forward, the Veteran's right knee disability is manifested by degenerative joint disease of the right knee, as established by X-ray, with objectively painful noncompensable limitation of motion from 5 to 125 degrees and 1+ medial-lateral instability.


CONCLUSIONS OF LAW

1.  The criteria for a rating of 10 percent, but no greater, have been met prior to January 15, 2013 for right foot plantar fasciitis.  38 U.S.C.A. § 1155 (West 2002); 38 U.S.C.A. § 4.71a, Diagnostic Code 5299-5284 (2012).

2. The criteria for a rating in excess of 10 percent for right foot plantar fasciitis have not been met from January 15, 2013 forward.  38 U.S.C.A. § 1155 (West 2002); 38 U.S.C.A. § 4.71a, Diagnostic Code 5299-5284 (2012).

3. The criteria for a rating of 10 percent, but no greater, have been met prior to January 15, 2013 for left foot plantar fasciitis.  38 U.S.C.A. § 1155 (West 2002); 38 U.S.C.A. § 4.71a, Diagnostic Code 5299-5284 (2012).

4. The criteria for a rating in excess of 10 percent for left foot plantar fasciitis have not been met from January 15, 2013 forward.  38 U.S.C.A. § 1155 (West 2002); 38 U.S.C.A. § 4.71a, Diagnostic Code 5299-5284 (2012).

5. The criteria for an initial compensable rating for right knee chondromalacia have not been met prior to May 5, 2008.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§ 4.71a, Diagnostic Code 5260 (2012).

6. The criteria for an initial rating in excess of 10 percent for right knee chondromalacia with degenerative joint disease have been met from May 5, 2008 to January 15, 2013.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5003 (2012).

7. The criteria for an initial rating in excess of 10 percent for right knee chondromalacia with degenerative joint disease have not been met from January 15, 2013 forward.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5003 (2012).

8. The criteria for an initial rating in excess of 10 percent for service-connected right knee instability have not been met from January 15, 2013.  38 U.S.C.A. 
§ 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Here, the Veteran is appealing the initial rating assignments for his right and left foot and right knee disabilities.  Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial.  Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and statement of the case (SOC) described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim.  38 C.F.R. § 3.159(b)(3) (2012).  The RO has provided the Veteran with the required SOC discussing the reasons and bases for not assigning a higher initial rating and citing the applicable statutes and regulations.

Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied.  See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision.

VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing him with a VA examination.  The Veteran's service treatment records, VA medical records, and the reports of November 2007, May 2008, January 2010, and January 2013 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of the claims.  The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claims.  

With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  In this case, each examiner documented the Veteran's subjective complaints and medical history, and evaluated the Veteran.  Thereafter, in the reports, they provided information sufficient in detail and relevance to the rating criteria to allow for determination of the appropriate disability ratings for the right and left foot and right knee.  The Board notes that only the January 2010 examination report specifies that review of the claims file occurred.  However, the Board does not find that the lack of the claims file renders the other examinations inadequate.  The Veteran's reported history at these examinations was consistent with the claims file; moreover, in an initial rating claim, it is the present level of disability that is most salient to a determination of the appropriate rating for the disability at issue.  Nothing suggests that any examiner documented findings inconsistent with the medical history outlined in the claims file.  Thus, the Board does not find any of the examinations to be inadequate.  

In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claims without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran).  Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claims.

II. Analysis

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14.

In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  As such, the Board has considered all evidence of record in evaluating the Veteran's plantar fasciitis and right knee disabilities.  Also, in Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation 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.  Fenderson at 126-28.  As such, in accordance with Fenderson, the Board has considered the propriety of staged ratings in evaluating the Veteran's service-connected disabilities.

Where there is a question of which of two rating evaluations shall be applied, the higher evaluation will be assigned if the disability picture more closely approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  
The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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.  38 C.F.R. § 4.40.  Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities.  38 C.F.R. § 4.45.  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis).  However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).  

Regulations provide that, when the disability being rated is not specifically provided for in the rating schedule, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.  Further, the provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99."  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  The additional code is shown after a hyphen.  

Right and left foot disabilities

The Veteran's right and left plantar fasciitis disabilities have been assigned a noncompensable rating prior to January 15, 2013 and a 10 percent rating evaluation thereafter pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5284 (2013).  The Veteran contends that the symptomatology of his service-connected bilateral foot disability has increased in severity.  Consequently, he argues that a higher rating evaluation should be assigned.  

Under Diagnostic Code 5284, for foot injuries, other, a 10 percent evaluation is provided for a "moderate" foot injury.  A 20 percent evaluation is provided for a "moderately severe" foot injury.  A 30 percent evaluation is provided for a "severe" foot injury.  The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot.  38 C.F.R. § 4.71a.  The words "moderate," "moderately severe," and "severe" are not defined in Diagnostic Code 5284.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just."  38 C.F.R. § 4.6.

As reflected in the discussion below, the Board determines that a rating of 10 percent is warranted for both the right and left foot plantar fasciitis throughout the entire appeal period.  The Board determines that a rating in excess of 10 percent is not warranted for either foot, either before or after January 15, 2013.  

Evidence relevant to the appeal period includes the reports of three VA examinations and VA treatment records.  At a November 2007 general medical examination, the examiner noted subjective complaints of pain in the heels and plantar aspect of the arch with flare-ups precipitated by too much standing and too much walking.  Symptoms were reported to be moderate in intensity.  The examiner stated that the disabilities' impact on daily activities was pain, decreased mobility, and lack of stamina.  The severity of the effect on activities was mild for shopping and sports and moderate for chores and exercise.  No impact was noted for traveling, feeding, bathing, dressing, toileting, grooming, or driving.  

A May 2008 podiatric examination report noted subjective symptoms of pain, swelling, fatigability, and lack of endurance.  The pain was described as chronic, nagging, throbbing pain, and the swelling as generalized and progressive throughout the day.  The examiner documented flare-ups weekly or more often, precipitated by prolonged walking and/or standing.  Objectively, the examiner noted painful motion and tenderness without swelling, instability, weakness, or abnormal weight bearing.  X-rays were negative for each foot.  The examiner found that the disability had a mild effect on traveling, dressing, and driving, a moderate effect on chores, shopping, and recreation, and a severe impact on exercise.  Sports were prevented.  
At a January 2010 VA foot examination, the Veteran identified symptoms of pain, swelling, weakness, and lack of endurance.  Flare-ups were noted to occur weekly or more often.  Painful motion and tenderness were found upon clinical examination.  X-rays showed intact right foot without soft tissue swelling or recent fracture, flat foot, and calcaneal spurs without localized or generalized degenerative joint disease or significant change when compared with May 2008 X-rays.  The examiner stated that the disabilities impact was lack of stamina, decreased strength in the lower extremity, and pain.  Effects on daily activities were mild for recreation and traveling and moderate for chores, shopping, and exercise.  Sports were prevented, but feeding, bathing, dressing, and toileting were not affected.  

A January 2013 VA examination report noted that the Veteran again reported increased throbbing pain after prolonged standing or walking, citing a duration of at least 30 minutes.  The examiner indicated that X-rays showed no significant change when compared with May 2008 X-rays and stated that the findings of bilateral flat foot and right valgus deformity of the ankles were incidental.  

Based on the above, the Board determines that a rating of 10 percent is appropriate for both the right and left foot disabilities prior to January 15, 2013.  In making this determination, the Board affords the Veteran the benefit of the doubt in considering the evidence of his reports of chronic pain, described as moderate in November 2007, and the May 2008 and January 2010 VA examiners' findings that the Veteran's disability had a mild impact on the daily activity of dressing, but a moderate impact on daily activities such as chores and shopping.  

However, the Board concludes that a rating in excess of 10 percent is not supported by the evidence at any time during the appeal period.  In this regard, the Board notes that the impact on the Veteran's activities was only worse than moderate in 2008 for exercise and sports, which are not necessary activities of daily living.  Further, when asked to describe the severity of his pain in November 2007, the Veteran indicated the pain was moderate.  The evidence from prior to January 15, 2013 does not suggest that either foot disability is more severe than moderate, and the Board is affording the benefit of the doubt to the Veteran in assigning a rating for a moderate disability during the period.  As for the period after January 15, 2013, the Board notes that no change in the Veteran's symptoms were reported subjectively or noted clinically.  The pes planus and valgus deformity shown on X-ray were stated to be incidental and reflect different disabilities from the plantar fasciitis.  Accordingly, the Board assigns a rating of 10 percent for the right foot plantar fasciitis prior to January 15, 2013 and a rating of 10 percent for the left foot plantar fasciitis prior to January 15, 2013.  However, a rating in excess of 10 percent each for the right and left foot plantar fasciitis from January 15, 2013 forward is denied.  

As indicated by the above discussion, the Board has considered alternate rating codes in evaluating the appropriate rating for the Veteran's service-connected bilateral foot disability as required under Schafrath.  Additionally, the Board has noted the reports of pain by the Veteran, but determines that there is no evidence of functional loss due to pain, weakness, or fatigability that supports a rating in excess of 10 percent at any time during the appeal period for either the right or left foot disability.  38 C.F.R. §§ 4.40, 4.45; DeLuca.  To the extent the Veteran experiences these factors they are contemplated in the assigned ratings.  Thus, a higher rating based on these factors is not warranted for either foot. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  As indicated, the Board has considered the benefit of the doubt in granting the ratings of 10 percent, but no greater, for the right and left foot disabilities prior to January 15, 2013.  However, the Board determines that the preponderance of the evidence is against assignment of a rating in excess of 10 percent for the right and left foot disabilities from January 15, 2013 forward. 

Right knee disability

VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding.  See VAOPGCPREC 23-97 (July 1, 1997).

VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability.  When a knee disorder is already rated under Diagnostic Code 5257, the Veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis.  If the Veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned.

In VAOPGCPREC 9-98, General Counsel also held that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59.  In addition, General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion.  For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion.  Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered.  See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488.  Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261.  The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261.

The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion.  Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered.

In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 (i.e. the limitation of motion codes) for disability of the same joint.  VAOPGCPREC 9-2004 (September 17, 2004).

Recurrent subluxation or lateral instability of the knee is rated under 38 C.F.R. 
§ 4.71a, Diagnostic Code 5257.  These criteria provide for a 10 percent rating for mild recurrent subluxation or lateral instability, 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, Diagnostic Code 5257.

Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint is assigned a 20 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5258.  

Diagnostic Code 5260 provides for limitation of flexion of the leg.  Where flexion is limited to 45 degrees, 10 percent is assigned.  Flexion limited to 30 degrees warrants a 20 percent rating.  Flexion limited to 15 degrees warrants a 30 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5260.

Diagnostic Code 5261 provides for limitation of the extension of the leg.  When there is limitation of extension of the leg to 5 degrees, a 0 percent rating is assigned; when the limitation is to 10 degrees, a 10 percent rating is assignable; when the limitation is to 15 degrees, 20 percent is assigned; when extension is limited to 20 degrees, 30 percent is assigned; when extension is limited to 30 degrees, 40 percent is assigned; and when it is limited to 45 degrees, 50 percent is assigned.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion.  38 C.F.R. § 4.71, Plate II.

Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  When, however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  Id.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Id.  Pursuant to VAOPGPREC 9-98 (August 14, 1998), a separate rating for arthritis could also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59.  In the absence of limitation of motion, a 10 percent rating is assigned where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

The Veteran's service-connected right knee disability has been rated noncompensably prior to January 15, 2013 and as 10 percent disabling from that date forward pursuant to Diagnostic Code 5260 for limitation of flexion.  38 C.F.R. § 4.71a.  A 10 percent rating is also in place for right knee instability from January 15, 2013 under Diagnostic Code 5257.  Id.  

With regard to the Veteran's right knee chondromalacia, as discussed below, from May 5, 2008, the medical evidence of record shows that the Veteran has objectively painful, noncompensable limitation of motion with degenerative joint disease shown by X-ray.  The 10 percent rating currently assigned from January 15, 2013 pursuant to Diagnostic Code 5260 contemplates only limitation of flexion that is objectively painful.  See DeLuca, 8 Vet. App.  Therefore, the Board determines that the veteran's right knee disability is more properly evaluated under Diagnostic Codes 5260-5003 for objectively painful limitation of flexion with degenerative joint disease as shown by X-ray.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). 

The relevant evidence includes four VA examinations and VA treatment records.  
At the November 2007 VA examination, the Veteran complained of pain in the right knee, particularly when negotiating stairs, and stiffness in the joint.  The examiner found no constitutional symptoms of arthritis, but noted mild patellar tenderness.  There was no grinding, crepitus, instability, or patellar or meniscal abnormality.  Standing was limited to 15 to 30 minutes and walking to a 1/4 mile.  Right knee range of motion was 0 to 120 degrees, and there was no additional limitation with repetition.  The examiner reported that there was no objective evidence of pain with motion.  The examiner also stated that there was no joint ankylosis.  The effect on the Veteran's daily activities was assessed as mild for chores, shopping, and sports and moderate for exercise and driving.  The examiner noted that the Veteran was no longer able to run.  The diagnosis was chondromalacia of the right knee.

At the May 2008 VA examination, the Veteran had complaints of pain, giving way, and decreased speed in the joint.  He also reported swelling and severe weekly flare-ups lasting hours.  He denied episodes of dislocation and subluxation.  Standing was limited to a few minutes and walking to a 1/4 mile.  Examination found crepitus, tenderness, pain at rest, clicks or snaps, grinding, and meniscus abnormality.  There was no instability.  Range of motion was from 0 to 130 degrees with no additional limitation on repetition.  The examiner noted objective pain with motion.  X-rays showed slight degenerative changes.  The diagnoses were degenerative joint disease and chondromalacia of the right knee.  The effect on daily activities was mild for dressing and traveling, moderate for chores, shopping, recreation, and driving, and severe for exercise.  Sports were prevented.  

A January 2010 VA examination report revealed that the Veteran identified symptoms of pain, giving way, instability, stiffness, weakness, deformity, and locking episodes.  The examiner noted no constitutional symptoms of arthritis.  Clinical findings included crepitus, slight edema, tenderness, clicks or snaps, grinding, patellar abnormality, abnormal motion, and guarding of movement.  The examiner found no clinical sign of instability.  Range of motion was 0 to 100 degrees, which was further limited to 0 to 90 degrees as a result of pain upon repetition.  X-rays continued to show slight degenerative changes.  The diagnoses were degenerative joint disease and chondromalacia of the right knee.  The effect on daily activities was moderate for chores, shopping, recreation, and driving and severe for exercise.  Sports were prevented.  

A January 2013 VA examination report noted that the Veteran again reported increased throbbing pain after prolonged standing or walking, citing a duration of at least 30 minutes.  Range of motion was to 130 degrees flexion with pain beginning at 125 degrees, and 0 degrees extension with pain starting at 5 degrees.  Range of motion was not further limited by repetition.  Additional limitation in the form of less movement and excess fatigability was found on repetition.  Anterior and posterior ligament testing was normal.  Varus/valgus testing revealed medial-lateral ligament instability of 1+.  X-rays showed slight degenerative change.  The diagnoses were degenerative joint disease and chondromalacia of the right knee.  

In light of the above, the Board determines that a compensable rating is not warranted for the Veteran's right knee disability prior to May 5, 2008.  In this regard, the Board notes that the Veteran had limitation of flexion to not less than 120 degrees, no limitation of extension, and no instability or subluxation.  No objective evidence of pain was documented, and there was no evidence as of that date of arthritis in the knee.  Without objective evidence of painful motion or other loss of function, the right knee disability did not result in symptoms warranting compensation prior to May 5, 2008.  

The May 5, 2008 VA examination report reflects that the Veteran has degenerative joint disease of the right knee, as established by X-ray, with objectively painful noncompensable limitation of motion to 130 degrees flexion.  Therefore, a rating of 10 percent pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5003 is warranted as of that date.  A rating in excess of 10 percent requires limitation of flexion to 30 degrees or less or limitation of extension to 15 degrees or more.  The Veteran did not exhibit instability or subluxation to support a separate rating for those manifestations.  Therefore, a 10 percent rating, but no greater, is granted for right knee chondromalacia with degenerative joint disease from May 5, 2008 to January 15, 2013.

With respect to the two 10 percent ratings assigned by the RO for chondromalacia and instability as of January 15, 2013, the Board determines that ratings in excess of those assigned are not supported by the evidence.  The Veteran's limitation of extension to 5 degrees is not compensable, and a rating in excess of 10 percent requires flexion to 30 degrees or less or moderate instability.  The Veteran's flexion was limited to 125 degrees, and the instability was noted to be 1+ (0 - 5 millimeters) on a scale from normal to 3+ instability.  The Board concludes, therefore, that 1+ instability does not represent greater than mild instability.  

The Board has also the potential application of the various provisions of 38 C.F.R. Parts 3 and 4 (2012), as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board notes that the Veteran underwent arthroscopic surgery for his knee; however, the January 2013 VA examiner stated that the Veteran had no visible scars.  Thus, a review of the record fails to reveal any additional functional impairment associated with the Veteran's service-connected right knee disability so as to warrant further consideration of alternate rating codes. 

Extra-schedular ratings and TDIU

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2012).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  In exceptional cases where the rating is inadequate, it may be appropriate to assign an extra-schedular rating.  38 C.F.R. § 3.321(b) (2012). 

The threshold factor for extra-schedular 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, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60   (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disabilities with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate.  Right and left plantar fasciitis and right knee chondromalacia and instability are evaluated under the schedular criteria, which the Board has found to specifically contemplate the level of occupational and social impairment caused by these disabilities.  38 C.F.R. 
§ 4.71a, Diagnostic Codes 5299-5284, 5003, 5257, 5260 (2012).  The right and left plantar fasciitis are manifested by chronic moderate pain with flare-ups causing a moderate impact on daily activities.  The right knee disability is manifested by degenerative joint disease and productive of objectively painful motion and mild instability.  When comparing these disability pictures with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are congruent with the disability picture represented by the 10 percent disability ratings for a moderate foot injury, degenerative joint disease with painful motion of the knee, and mild instability of the knee.  See also DeLuca, 8 Vet. App.  Evaluations in excess of those assigned are provided for functional impairment that has not been demonstrated in this case.  The criteria for the ratings assigned by the RO and the Board reasonably describe the Veteran's disability level and symptomatology.  

Finally, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record or claimant.  In this case, the record reflects that the Veteran is currently employed.  Therefore, the Board determines that further consideration of TDIU is not warranted. 


ORDER

A rating of 10 percent, but no greater, is granted for right foot plantar fasciitis prior to January 15, 2013.

A rating in excess of 10 percent is denied for right foot plantar fasciitis from January 15, 2013 forward.

A rating of 10 percent, but no greater, is granted for left foot plantar fasciitis prior to January 15, 2013.

A rating in excess of 10 percent is denied for left foot plantar fasciitis from January 15, 2013 forward.

A compensable rating for chondromalacia of the right knee is denied prior to May 5, 2008.

A 10 percent rating, but no greater, for chondromalacia of the right knee with degenerative joint disease is granted from May 5, 2008 to January 15, 2013.

A rating in excess of 10 percent for chondromalacia of the right knee with degenerative joint disease is denied from January 15, 2013 forward. 

A rating in excess of 10 percent for right knee instability is denied from January 15, 2013 forward.  






____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs