Citation Nr: 1319583 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-43 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for the retropatellar pain syndrome, status post arthroscopic surgery with a scar, of the right knee, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for the retropatellar pain syndrome of the left knee, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1994 to May 2001. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the benefits sought on appeal. The Veteran filed a Notice of Disagreement (NOD) in July 2009. The RO issued a Statement of the Case (SOC) in October 2009. In October 2009, the Veteran filed her Substantive Appeal. Thus, the Veteran perfected a timely appeal of these issues. In her Substantive Appeal, the Veteran requested a Travel Board hearing. In a May 2013 letter, she was notified that her hearing had been scheduled for May 8, 2013, but she failed to appear for the proceeding and has not provided an explanation for her absence or requested to reschedule the hearing. Accordingly, the Board considers that her hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2012). The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. FINDINGS OF FACT 1. Throughout the appeal, the Veteran's retropatellar pain syndrome, status post arthroscopic surgery with a scar, of the right knee has been manifested by pain, but has not objectively demonstrated recurrent subluxation or lateral instability that is productive of moderate impairment of the knee. She has had normal extension throughout the appeal, and flexion limited to between 90 and 130. 2. Throughout the appeal, the Veteran's retropatellar pain syndrome of the left knee has been manifested by pain, but has not objectively demonstrated recurrent subluxation or lateral instability that is productive of moderate impairment of the knee. She has had normal extension throughout the appeal, and flexion limited to between 90 and 130. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the retropatellar pain syndrome, status post arthroscopic surgery with a scar, of the right knee are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257 (2012). 2. The criteria for a rating in excess of 10 percent for the retropatellar pain syndrome of the left knee are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist In correspondence dated in June 2008 and July 2009, the Agency of Original Jurisdiction (AOJ) provided notice to the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(b) (2012). Specifically, in 2008, the AOJ notified the Veteran of information and evidence necessary to substantiate the claims for increased ratings, indicating that she must show that her disabilities had increased in severity. This notice included information and evidence that VA would seek to provide and that which the Veteran was expected to provide. In the 2009 notice, the Veteran was further notified of the process by which a disability rating is established. This correspondence indicated that evaluations are based on the ratings schedule and assigned a rating between 0 and 100 percent, depending on the relevant symptomatology. It instructed the Veteran to tell VA about, or give VA, any medical or lay evidence demonstrating the current level of severity of her disabilities and the effects that any worsening of the disabilities had on her employment and daily life. It specifically listed examples of such evidence, such as on-going treatment records, Social Security Administration determinations, statements from employers as to job performance, lost time, or other pertinent information, and personal lay statements. In response, the Veteran submitted a statement in July 2009, indicating that she had nothing further to submit. Although fully compliant notice was accomplished after the initial denials of the claims, the AOJ subsequently readjudicated the claims based on all the evidence in the October 2009 statement of the case (SOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the Veteran was not precluded from participating effectively in the processing of her claims and the late notice did not affect the essential fairness of the decision. The otherwise defective notice has resulted in no prejudice to the Veteran. VA has done everything reasonably possible to assist the Veteran with respect to her claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disabilities currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Veteran has been medically evaluated on two occasions in conjunction with her claims. The reports of those evaluations contain all findings needed to properly evaluate her disabilities. 38 C.F.R. § 4.2 (2012). The duty to assist has been fulfilled. Disability Ratings The Veteran seeks increased disability evaluation for her service-connected bilateral knee disabilities. Such evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate DCs 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 DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, however, the Board must consider whether the rating should be "staged." See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a staged rating would be necessary. The Veteran asserts that she is entitled to disability ratings in excess of 10 percent for her retropatellar pain syndrome, status post arthroscopic surgery with a scar, of the right knee, and her retropatellar pain syndrome of the left knee. These disabilities are currently rated as 10 percent under 38 C.F.R. § 4.71a, DC 5257. Under 38 C.F.R. § 4.71a, DC 5257, a 10 percent rating is warranted for recurrent subluxation or lateral instability which is productive of slight impairment of the knee. A 20 percent rating is warranted for recurrent subluxation or lateral instability that is productive of moderate impairment of the knee. The maximum 30 percent rating is warranted for recurrent subluxation or lateral instability that is productive of severe impairment of the knee Id. The words "slight," "moderate" and "severe", as used in the various diagnostic codes, are not defined in VA's Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In other words, the use of these descriptive terms is not altogether dispositive of the rating that should be assigned, but it is nonetheless probative evidence to be considered in making this important determination. 38 C.F.R. §§ 4.2, 4.6. In VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA's General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003-5010 (for the arthritis of the knee) and DC 5257 (for the instability of the knee) based on additional disability. 38 C.F.R. § 4.71a, DCs 5003, 5010, 5257 (2012). It was specified that, for a knee disability already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 (flexion) or DC 5261 (extension). Hence, if a claimant has a disability rating under DC 5257 for instability of the knee and there is also X-ray evidence of arthritis and resulting limitation of motion, a separate rating is available under DC 5003-5010. 38 C.F.R. § 4.71a. Under DC 5260, a 10 percent rating requires flexion of the knee limited to 45 degrees. A 20 percent rating is warranted for flexion of the knee limited to 30 degrees. A 30 percent rating is warranted for flexion of the knee limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, a 10 percent rating requires extension limited to at least 10 degrees. A 20 percent rating requires extension limited to 15 degrees. A 30 percent rating requires extension limited to 20 degrees. A 40 percent rating requires extension limited to 30 degrees. A 50 percent rating requires extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261 (2012). For comparison, normal range of motion in the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. It is also possible to receive separate ratings for limitation of flexion (DC 5260) and limitation of extension (DC 5261) for a disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Further, 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable DC, 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). If the Veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Johnston, 10 Vet. App. at 80. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to higher disability ratings for her service-connected bilateral knee disabilities. Id. The Board notes that measurements taken at the VA examinations, which included consideration of the Veteran's pain following repetitive use, did not meet the criteria for the 20 percent ratings under DC 5257. 38 C.F.R. § 4.71a. Despite the Veteran's lay assertions of instability and the VA treatment records documenting the use of a knee brace, instability and subluxation of the knees were not documented at the July 2008 and April 2012 VA examinations. The April 2012 VA examiner noted that the Veteran had a history of moderate recurrent patellar subluxation/dislocation of the right knee, but found that there was no evidence of any patellar dislocation or subluxation, to include as shown on X-rays, at the VA examination. The Board notes that the Veteran suffered a fall in June 2009, in which she fell down stairs. As shown in VA treatment records dated in June 2009, the Veteran was prescribed crutches and a knee brace for the injury. However, the evidence of record does not establish that this fall was due to the Veteran's service-connected bilateral knee disabilities. By her VA examination in April 2012, the injuries from the fall had healed, and no instability, subluxation, or effusion were shown in either knee. The remaining VA treatment records do not provide contrary evidence. This evidence does not establish that the Veteran has recurrent subluxation or lateral instability that is productive of moderate impairment of either knee. Instead, the Board finds that Veteran's bilateral knee disabilities are best rated as slight (i.e., the 10 percent disability rating). Therefore, the Veteran is not entitled to increased disability ratings for her service-connected bilateral knee disabilities under 38 C.F.R. § 4.71a, DC 5257. The evidence of record also does not establish that the Veteran should be awarded a separate disability rating for her limitation of extension or limitation of flexion of the knees. 38 C.F.R. § 4.71a, DCs 5260, 5261. The evidence establishes that the Veteran does not have a noncompensable or compensable disability rating under the limitation of extension or limitation of flexion codes. Id. At the July 2008 VA examination, the Veteran's extension was limited to 0 degrees (normal) and her flexion was limited to 130 degrees bilaterally, even when considering her pain (where 140 degrees is normal). At the April 2012 VA examination, the Veteran's extension was limited to 0 degrees in both knees with no objective evidence of painful motion. Her flexion of the left knee was limited to 105 degrees with pain beginning at 90 degrees, and her flexion of the right knee was limited to 115 degrees with pain beginning at 90 degrees. Although these represent decreases in range in motion, they still do not rise to the level of limitation contemplated by the compensable level, which requires flexion limited to 45 degrees or less. The VA treatment records do not provide contrary results. Thus, the Veteran is not entitled to a separate disability rating for her limitation of extension or limitation of flexion of the knees. She does not meet the requirements for a noncompensable or compensable disability rating under the limitation of motion codes for either knee. 38 C.F.R. § 4.71a, DCs 5260, 5261. The Board also finds that disability ratings higher than 10 percent are not warranted on the basis of functional loss due to the other factors discussed in DeLuca - namely, weakened movement, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 204-08. It bears reiterating that the Veteran does not have sufficient limitation of flexion or extension in her knees, even when considering her pain, to warrant even the minimum compensable ratings of 10 percent under DCs 5260 or 5261. Thus, her current 10 percent ratings for her service-connected bilateral knee disabilities under DC 5257 are the means of compensating her for the additional impairment - including additional limitation of motion, from her chronic pain in the knees. Thus, she is already receiving the appropriate amount of compensation for the pain and other DeLuca factors. The remainder of the DCs pertaining to the knee and leg also do not justify a disability rating in excess of 10 percent for the service-connected bilateral knee disability. Taking the remaining codes in numerical order, DC 5256 is not applicable because there is no ankylosis of the Veteran's knees. The existence of ankylosis is not supported by the Veteran's ranges of motion. DC 5258 is applicable where there is cartilage, semilunar, dislocated, with frequent episodes of "locking" pain and effusion into the joint. At the VA examinations, the VA examiners found that the Veteran's knees did not have any locking or effusion episodes. Even if there were, there are no meniscal abnormalities noted on examination. Thus, this DC is not applicable. DC 5262 (describing malunion or nonunion) has also not been raised by the aforementioned medical evidence, as there were no structural abnormalities of the Veteran's knees noted at the VA examinations or in the associated X-rays. Thus, the Veteran is not entitled to higher disability ratings of 20 percent under DC 5258 or DC 5262. Additionally, the Veteran is already in receipt of 10 percent, which is the maximum schedular rating available under DC 5259 and DC 5263. DCs 5003 and 5010 are not applicable, as X-rays taken at the April 2012 VA examination found no arthritis of the knees. Thus, these remaining DCs do not justify disability ratings in excess of 10 percent for the service-connected bilateral knee disabilities. 38 C.F.R. § 4.71a. Finally, the Board observes that the Veteran has a scar associated with her service-connected right knee disability, which is included in the 10 percent disability rating for the service-connected right knee disability. At the July 2008 VA examination, the VA examiner found the scar to be healed with no symptoms. At the April 2012 VA examination, the VA examiner determined that this right knee scar was not painful, unstable, or of a total area greater than 39 square centimeters (6 square inches). Thus, the evidence of record does not establish, and the Veteran has not asserted, that this scar is painful, unstable (frequent loss of covering of skin over the scar), deep (associated with underlying soft tissue damage), or causes limitation of function of the affected part. The scar also covers an area of less than 144 square inches (929 square centimeters). Therefore, consideration of a separate compensable evaluation for the scar of the service-connected right knee is not warranted. 38 C.F.R. Part 4, DCs 7801, 7802, 7803, 7804, 7805 (2012). (The Board observes that the rating criteria for scars under DCs 7800, 7801, 7802, 7803, 7804, and 7805 were revised, effective October 23, 2008. 73 Fed. Reg. 54708-12 (Sept. 23, 2008). However, the changes apply only to applications for benefits received by VA on or after October 23, 2008, or to claims where a Veteran requests review under the new criteria. Here, the Veteran's increased rating claim was filed on June 2008, and no such request for review under the new criteria has been made.) The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board acknowledges that the Veteran is competent to give evidence about what she observes or experiences. For example, she is competent to report that she experiences certain symptoms, such as pain, and she is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's competent and credible belief that her disability is worse than the assigned rating, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings than the Veteran's lay statements. Staged ratings under Hart v. Mansfield, supra, were considered; however, the Veteran's symptoms have remained constant throughout the course of the period on appeal. As such, staged ratings are not warranted. There also is no reason to refer this case to the Compensation Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest the Veteran is not adequately compensated by the regular rating schedule. At the July 2008 VA examination, the Veteran reported that she was currently employed. At the April 2012 VA examination, the VA examiner determined that the Veteran's service-connected bilateral knee disabilities did not impact her work. Further, no hospitalizations for the service-connected bilateral knee disabilities have been documented during the course of the appeal. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. The evidence of record does not establish, and the Veteran does not contend, that her service-connected bilateral knee disabilities prevent her from being employed. Therefore, consideration of a TDIU is not warranted. In sum, the preponderance of the evidence is against the assignment of disability ratings in excess of 10 percent for the service-connected retropatellar pain syndrome, status post arthroscopic surgery with a scar, of the right knee, and the service-connected retropatellar pain syndrome of the left knee, at any time during the appeal period. Thus, the claims are denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating for the retropatellar pain syndrome, status post arthroscopic surgery with a scar, of the right knee, currently evaluated as 10 percent disabling, is denied. Entitlement to an increased rating for the retropatellar pain syndrome of the left knee, currently evaluated as 10 percent disabling, is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs