Citation Nr: 1319633 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 07-34 536A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of internal derangement of the left knee, post arthroscopy. 2. Entitlement to a rating in excess of 10 percent for painful motion of the left knee. 3. Entitlement to a rating in excess of 10 percent for a right knee strain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to July 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois that, in pertinent part, continued the 20 percent evaluation for the residuals of internal derangement of the left knee, assigned a separate 10 percent evaluation for painful motion of the left knee, and continued the 10 percent evaluation of the right knee strain. The Veteran testified at a May 2007 hearing at the Chicago RO before a Decision Review Officer (DRO) and at a March 2011 videoconference hearing before the undersigned. Transcripts of both hearings have been associated with the claims file. When this case was previously before the Board in May 2011, it was decided in part and remanded in part for additional evidentiary development; it has since been returned to the Board for further appellate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file was completed to ensure thorough analysis of the evidence of record. FINDINGS OF FACT 1. The Veteran's residuals of internal derangement of the left knee, post arthroscopy, has been productive of a moderate disability with painful motion, full extension and flexion to no less than 135 degrees, but without patellar subluxation, ankylosis, tibia or fibula impairment or genu recurvatum. 2. The Veteran's right knee strain has been productive of a slight disability with painful motion with full extension and flexion to no less than 140 degrees, but without patellar subluxation, ankylosis, tibia or fibula impairment or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for residuals of internal derangement of the left knee, post arthroscopy, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5257-5261 (2012). 2. The criteria for a disability rating in excess of 10 percent for left knee painful motion are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257-5261 (2012). 3. The criteria for a disability rating in excess of 10 percent for right knee strain are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257-5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board finds that all duty to notify and assist requirements have been met with respect to the claims adjudicated herein. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. at 486. Here, letters dated in November 2005 and March 2006 together provided the Veteran with all notice required under the VCAA, including the elements of service connection, examples of the types of evidence the Veteran could submit in support of his claims, and the Veteran's and VA's respective responsibilities for obtaining such evidence. The Board finds that the duty to notify has been satisfied. The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes assisting him in obtaining service treatment records and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. The Board concludes that the duty to assist has been satisfied. The Veteran's service treatment records and pertinent post-service records are in the file. The Veteran has also been afforded satisfactory VA examinations. The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claims. The Board concludes that the duty to assist has been satisfied with respect to obtaining relevant evidence on the Veteran's behalf. See 38 C.F.R. § 3.159(c). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability evaluations are determined by the application of the 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. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the 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. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or pathology as productive of disability. It is the intention 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. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (July 1, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998). The Veteran's residuals of internal derangement of the left knee, post arthroscopy, have been rated as 20 percent disabling under diagnostic code 5257. His right knee strain has been rated as 10 percent disabling for a slight knee disability, and his left knee condition has been rated as 10 percent disabling for painful motion. Diagnostic Code 5257 provides ratings for impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated as 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated as 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated as 30 percent disabling. 38 C.F.R. § 4.71a. The words "slight," "moderate" and "severe" as used in various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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 (2012). The VA General Counsel has also held that separate ratings under 38 C.F.R. Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September 17, 2004). Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees warrants a noncompensable (0 percent) disability rating; flexion of the leg limited to 45 degrees warrants a 10 percent disability rating; flexion of the leg limited to 30 degrees warrants a 20 percent disability; and flexion of the leg limited to 15 degrees warrants a 30 percent disability rating. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees warrants a noncompensable (0 percent) disability rating; extension of the leg limited to 10 degrees warrants a 10 percent disability rating; extension of the leg limited to 15 degrees warrants a 20 percent disability rating; extension of the leg limited to 20 degrees warrants a 30 percent disability rating; extension of the leg limited to 30 degrees warrants a 40 percent disability rating; and extension of the leg limited to 45 degrees warrants a 50 disability rating. 38 C.F.R. § 4.71a. Other diagnostic codes relating to the knee are Diagnostic Code 5256 (ankylosis), Diagnostic Codes 5258 and 5259 (symptomatic dislocation and/or removal of semilunar cartilage), Diagnostic Code 5262 (impairment of tibia and fibula) and Diagnostic Code 5263 (genu recurvatum). As noted below, these conditions are not shown on examination and application of these diagnostic codes is not warranted. 38 C.F.R. § 4.71a. Background Information The Veteran filed a claim for increased ratings for his left and right knee disabilities in September 2005. In response to his claim, the Veteran was afforded a VA examination in May 2006 in which he complained of bilateral knee pain left greater than right with popping, grinding, intermittent swelling and the left knee giving out. The Veteran reported flare-ups with increased pain with activity and cold, damp weather. The flare-ups would cause difficulty with stairs and ladders. The Veteran reported using a left knee brace. Physical examination showed left knee had full extension, flexion was from 0 to 135 degrees; right knee had full extension and flexion was from 0 to 140 degrees. Left and right knees had painful motion. The examiner noted bilateral guarding and patellofemoral crepitus and slight antalgic gait on the left. There was no ankylosis and no inflammatory arthritis. The examiner noted that there was an unremarkable bilateral knee examination and diagnosed patellofemoral pain syndrome, bilateral knees. The Veteran submitted three lay statements in 2006 attesting to his chronic knee pain, buckling, discomfort, deterioration of his mobility and ability to perform tasks that required any type of physical exertion, difficulty climbing steps and maintaining his balance, and an inability to work. The Veteran testified before an RO DRO in May 2007 that he wore a knee brace and had symptoms to include lateral instability, pain, limitation with walking and running, and had fallen due to his knees. In his formal appeal, VA Form 9, the Veteran stated that his right knee caused him severe pain, limited motion, weakened movement, and excess fatigability. He also stated that his left knee caused moderate to severe pain, with tenderness, limited motion and swelling. The Veteran was afforded a VA examination in May 2008 in which he complained of bilateral knee pain with popping and grinding, intermittent swelling of the left knee and it giving out and locking. The Veteran reported flare-ups with activity and cold, damp, or rainy weather conditions with precipitating factors being stairs, kneeling, bending, and prolonged sitting. He reported limitation during flare-ups of difficulty with climbing stairs or continuing with engaged activities. Physical examination showed left knee had full extension and flexion was from 0 to 135 degrees; right knee had full extension and flexion was from 0 to 140 degrees. Left and right knees had painful motion. The examiner noted bilateral grinding, crepitus, and guarding. There was no ankylosis and no inflammatory arthritis. The examiner diagnosed patellofemoral pain syndrome, bilateral knees. A VA treatment record in June 2009 showed that the Veteran complained of his right leg giving out, causing him to fall and his right knee swelling. Additional VA records show complaints of right knee swelling, pain, mild weakness, and popping. The Veteran testified before the undersigned in March 2011 that if he didn't wear his brace, his left leg would buckle and that his knees affected his ability to work. He stated that he had pain in his knees, had incidents of falling when his left leg gave out, and his knee would lock up. In response to the Board's May 2011 remand, the Veteran was afforded a VA examination in August 2011 in which he complained of bilateral knee pain. He reported that his right and left knee symptoms were similar except for the left knee giving out. He reported intermittent, bilateral knee pain that was exacerbated by increased physical activity/stairs/kneeling/squatting. He also reported intermittent stiffness, swelling, left knee giving out if not for a brace, increased pain after walking two blocks and standing for a half hour, and pain and stiffness after one hour car rides. He reported working part-time in 2010 as a computer consultant and that he left the position due to economic downturn. The Veteran reported that his symptoms would fluctuate but were relatively consistent, and he did not experience true flare-ups. The examiner noted that there were no episodes of dislocation or recurrent subluxation and no inflammatory arthritis. The May 2011 physical examination for the left knee showed range of motion of 0 to 135 degrees, active equaled passive, range of motion was not painful, but there was some medial instability in 30 degrees of flexion. The right knee was similar to the left except that there were no surgical incisions, no medial patellar glide was compromised, and there was no medial instability. The examiner stated that the Veteran performed three repetitions of maximum active bilateral knee flexion and did not report pain; range of motion was unchanged; weakness/lack of endurance/incoordination were not factors. X-rays showed mild degenerative changes primarily involving medial and patellofemoral compartments. The examiner stated that there was no subluxation or lateral instability of bilateral knees, no instability of the right knee, and moderate left knee medial instability. There was no dislocation of the semilunar cartilage and no nonunion of the tibia or fibula. The Veteran's left knee brace was for medial instability of the knee and not for loose motion of a nonunion; there was no malunion of the tibia or fibula. In an informal hearing presentation submitted in May 2013, the Veteran's representative also stated that the Veteran contended that his left and right knee disabilities caused moderate to severe pain, limited motion, weakened movement, excess fatigability, and periods of swelling. He reported that the pain was exacerbated by increased physical activity, climbing stairs, kneeling, squatting, walking two blocks, standing for a half hour, and pain/stiffness started after one hour of a car ride. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to these disabilities. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent for residuals of internal derangement of the left knee, post arthroscopy. In this regard, his left knee has had full extension throughout the period of this claim and flexion has at worst been limited to 135 degrees. The Veteran has been generously granted a 20 percent rating for a "moderate" disability under Diagnostic Code 5257. While there is subjective evidence of instability of the left knee, the weight of the probative evidence does not show a disability manifested by severe recurrent subluxation or lateral instability. Moreover, the objective evidence simply does not warrant a disability rating higher than 10 percent for the left knee painful motion or right knee strain. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. To this point, the Veteran's right knee has had full extension throughout the period of this claim and flexion has at worst been limited to 140 degrees. Consideration has been given to assigning a separate evaluation under Diagnostic Code 5257 for the right knee. However, there is no objective evidence that the Veteran experiences any instability or subluxations in his right knee. Therefore, a separate evaluation under Diagnostic Code 5257 is not warranted. 38 C.F.R. § 4.71a. Consideration has been given to assigning a separate evaluation under Diagnostic Code 5258. However, there is no evidence that the Veteran experiences dislocated semilunar cartilage with frequent episodes of locking or effusion. Therefore, a separate evaluation under Diagnostic Code 5258 is not warranted. Additionally, the Board notes that pain is one of the symptoms contemplated by the criteria for Diagnostic Codes 5258. As the Veteran has already been assigned a 10 percent evaluation for his left knee disability based on painful motion, an additional evaluation under Diagnostic Code 5258 for pain would be prohibited by 38 C.F.R. § 4.14. Consideration has been given to assigning a separate evaluation under Diagnostic Code 5259. However, there is no evidence of record indicating that the Veteran has had cartilage removed from his knee and the impairment contemplated by Diagnostic Code 5259 is not separate and distinct from that contemplated by the assigned ratings. Therefore, a separate evaluation under Diagnostic Code 5259 is not warranted. Consideration has been given to assigning a separate evaluation under Diagnostic Code 5263. However, there is no objective evidence of genu recurvatum. Therefore, a separate evaluation under Diagnostic Code 5263 is not warranted. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the Veteran's knee disabilities warranted higher schedular ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Extraschedular Considerations Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Comparing the Veteran's left and right knee disability levels to the applicable rating criteria, the Board finds that the degree of disability shown is entirely contemplated by the rating schedule. These disabilities do not present an exceptional disability picture: the bilateral knee symptomatology (i.e., pain, limitation of motion) is addressed by the rating schedule. The schedular rating assigned is, therefore, adequate; referral of the claim for extraschedular consideration is not required. TDIU The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for service-connected disability or disabilities, and therefore is part and parcel of a claim for increased compensation. In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that once a claimant: (1)submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a). But there must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Here, records show the RO already has considered and denied the Veteran's claim for a TDIU, and he did not appeal the decision denying that claim. See unappealed rating decisions denying TDIU dated in December 2010. In the absence of a Board jurisdiction-conferring notice of disagreement in the matter, the RO's decision is final; the Board has no jurisdiction to address the matter. ORDER Entitlement to a rating in excess of 20 percent for residuals of internal derangement of the left knee, post arthroscopy, is denied. Entitlement to a rating in excess of 10 percent for painful motion of the left knee is denied. Entitlement to a rating in excess of 10 percent for a right knee strain is denied. ____________________________________________ MATTHEW TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs