Citation Nr: 1319689 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-23 791 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a higher initial rating for right knee degenerative joint disease, evaluated as 10 percent disabling. 2. Entitlement to a higher initial rating for left knee degenerative joint disease, evaluated as 10 percent disabling. 3. Entitlement to a higher initial rating for right ankle strain, evaluated as 10 percent disabling. 4. Entitlement to a higher initial rating for left ankle strain, evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from October 1985 to August 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2012 and January 2013, the Board remanded this case for additional development. On his July 2009 VA Form 9, the Veteran indicated that he wished to present testimony before a Veterans Law Judge at the RO. However, in November 2011, the Veteran canceled his request for a hearing. As such, his request is considered withdrawn. 38 C.F.R. § 20.704(e) (2012). FINDINGS OF FACT 1. The Veteran's knee disabilities are manifested by pain and degenerative changes without a compensable level of limited motion. 2. The Veteran's ankle disabilities equate to no worse than moderate limitation of motion. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2012). 2. The criteria for an evaluation in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2012). 3. The criteria for an evaluation in excess of 10 percent for a left ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5271 (2012). 4. The criteria for an evaluation in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claims arise from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board remanded the Veteran's claims in April 2012 and most recently in January 2013. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was to be afforded VA examinations to determine the full extent of current bilateral knee and ankle disabilities. The examination reports prepared following the Board's instructions are complete and provide the information necessary to rate the disabilities at issue. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has reviewed the Veteran's statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6 (2012). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). 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 portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45 (2012). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, 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). Id. 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 rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular 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 (2012). Knee Disabilities Throughout the rating period , a 10 percent disability rating has been assigned for each of the Veteran's knees under Diagnostic Code 5003, degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (2012). Under Diagnostic Code 5003, 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 under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a disability rating of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. With any form of arthritis, painful motion is an important factor. It is the intention of the rating schedule 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. Limitation of flexion of the leg to 60 degrees warrants a noncompensable disability rating. Limitation of flexion of the leg to 45 degrees warrants a 10 percent disability rating. A 20 percent disability rating requires that flexion be limited to 30 degrees. A 30 percent disability rating requires that flexion be limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of either leg to 5 degrees warrants a noncompensable disability rating. A 10 percent disability rating requires that extension be limited to 10 degrees. A 20 percent disability rating requires that extension be limited to 15 degrees. A 30 percent disability rating requires that extension be limited to 20 degrees. A 40 percent disability rating requires that extension be limited to 30 degrees. A 50 percent disability rating requires that extension be limited to 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5257, a 10 percent disability rating may be assigned for slight recurrent subluxation or lateral instability. When moderate, a 20 percent disability rating may be assigned, and when severe, a 30 percent disability rating may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5258 provides a sole 20 percent disability rating when the evidence demonstrates semilunar cartilage (that of the meniscus) which is dislocated, with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. As noted above, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban, 6 Vet. App. at 262. The VA Office of General Counsel has found that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held 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 is based upon additional disability. Subsequently, in VAOPGCPREC 9-98, the VA General Counsel further explained 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. See also VAOPGCPREC 9-04 (which finds that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint). Turning to the evidence of record, the Veteran was afforded a VA examination in October 2008. The Veteran reported constant pain at a level two (out of ten) with flares to level six with activity, which could last up to 30 minutes with intermittent swelling. The Veteran's range of motion was noted as normal, from 0 to 140 degrees with more pain at the extremes. The Veteran's stability in his knees was normal with McMurray's test and cruciate ligament testing. There was no change in pain or range of motion with repeated testing. The Veteran was diagnosed with mild bilateral knee strain. VA treatment records indicate that the Veteran was issued knee braces in December 2008. Bilateral knee x-rays in February 2009 indicate that the Veteran had degenerative changes. A January 2011 treatment note indicates the Veteran complained of pain in both knees, left worse than right. The Veteran ambulated independently without an assistive device with valgus deformity of both knees. His range of motion was noted as 7 - 110 degrees on the right side and 0 - 104 degrees on the left side. The knee was stable to anteroposterior and varus valgus stresses. X-rays showed valgus malalignment of the left knee with moderate to severe arthritis. The Veteran had left knee joint space narrowing with marked medial femorotibial shift and moderate medial joint space narrowing. The patellofemoral joint demonstrated mild to moderate degenerative changes with osteophytes, buttressing and effusion. The soft tissues were otherwise well maintained. The pain rating was 1-2/10. The Veteran's patellofemoral grinding, McMurray's, and drawer sign tests were negative bilaterally. The diagnosis was right knee severe lateral compartmental right knee joint space narrowing with bone on bone. The Veteran was afforded an additional VA examination in August 2012. He reported that he had flare-ups lasting two or three days with his activities being moderately limited during that time. The Veteran's range of motion was from 0 to 120 degrees with no objective evidence of painful motion. There were no additional limitations after repetitive testing. Functional loss included excess fatigability and pain on movement with pain to palpitation of the left knee. Joint stability testing was normal and there was no evidence or history of subluxation/dislocation. The examiner indicated that the Veteran had a meniscal tear of his right knee. Objective testing showed degenerative changes of both knees with no evidence of subluxation or other abnormal findings. The Veteran was diagnosed with degenerative joint disease of both knees. An addendum to this examination, dated in February 2013, indicates that the examiner was unable to comment concerning any additional limitation of motion on flare-ups without resorting to speculation as the Veteran was not having a flare-up at the time of the VA examination and there is no documentation in his treatment records of examination during a flare-up. The Veteran currently receives a 10 percent rating for each knee under Diagnostic Code 5003. Degenerative arthritis is rated based on limitation of motion. The evidence shows that the range of motion of the Veteran's knees, including any limitation of motion due to pain, is currently at the noncompensable level. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Even considering the Veteran's complaints of pain, he does not meet the criteria for a disability rating in excess of 10 percent under Diagnostic Code 5260 or 5261. Moreover, as a compensable rating is not warranted under either code, it therefore follows that a separate ratings under Diagnostic Codes 5260 and 5261 are not warranted. See VAOPGCPREC 9-2004. Given that the Veteran's knee disabilities do not rise to the compensable level under the range-of-motion codes specific to the knees (Diagnostic Codes 5260 and 5261), the 10 percent evaluations currently assigned represent the maximum available benefit under Diagnostic Code 5003. Additionally, there has been no objective evidence of recurrent subluxation or lateral instability. The Board notes in this regard that although the January 2011 treatment note indicates valgus deformities, all stability testing of the Veteran's knees has been normal. Thus, entitlement to a separate rating under Diagnostic Code 5257 is not warranted. See VAOPGCPREC 23-97; VAOPGCPREC 9-98. Moreover, separate ratings under Diagnostic Code 5259 for symptomatic removal of semilunar cartilage is not warranted as the Veteran is already rated under a code that contemplates rating based on limitation of motion. See VAOPGCPREC 9-98; see also 38 C.F.R. § 4.14 (the evaluation of the same manifestation under different diagnoses is to be avoided). Finally, there is no evidence that the Veteran suffers from dislocated semilunar cartilage or malunion or nonunion of the tibia and fibula. Thus, Diagnostic Codes 5258 and 5262 are not for application. In summary, the evidence demonstrates that the Veteran's objective residuals and subjective complaints regarding his bilateral knee disabilities are adequately addressed by the 10 percent disability ratings presently assigned for each, and that the criteria for higher evaluations have not been more nearly approximated. Ankle Disabilities Diagnostic Code 5271 pertains to limited motion of the ankle. Under that diagnostic code, ankle disability causing moderate limitation of motion warrants a 10 percent rating. A 20 percent rating is assigned for ankle disability causing marked limitation of motion. 38 C.F.R. § 4.71a , Diagnostic Code 5271. Normal range of ankle dorsiflexion is from 0 to 20 degrees, and normal plantar flexion is from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. Turning to the evidence of record, the Veteran was afforded a VA examination in October 2008. The Veteran reported constant pain at a level two with flares to level six with activity, which flares could last up to 12 to 18 hours with intermittent swelling. There was 2+ swelling around the right ankle and 1+ swelling around the left ankle. The ankle range of motion was noted as normal with more pain at the extremes with dorsiflexion. There was no change in pain or range of motion with repeated testing. There was tenderness on palpitation of the left ankle. The Veteran was diagnosed with mild bilateral ankle strain. The Veteran was afforded an additional VA examination in August 2012. The Veteran reported flare-ups that moderately limited his activities. Dorsiflexion was to 15 degrees with objective evidence of painful motion at that point. There were no additional limitations with repetitive testing. Functional impairment consisted of pain. There was no ankylosis of an ankle, subtalar and/or tarsal joint. On objective testing, there were degenerative changes of the right ankle. The Veteran was diagnosed with degenerative joint disease of the right ankle and strain of the left ankle. An addendum to the August 2012 VA examination, dated in February 2013, indicates that the Veteran's bilateral ankle disability would be best categorized as "moderate." The Board finds that the symptomatology attributable to the Veteran's ankle disability more closely approximates no more than overall moderate limitation of motion, consistent with the 10 percent rating assigned. In so finding, the Board observes that the Veteran consistently had almost full dorsiflexion less only 5 degrees during his most recent VA examination. Additionally, the examiner opined that the Veteran's bilateral ankle disability would be best categorized as moderate. As such, the Board finds that marked limitation of motion or disability equating to marked limitation of motion has not been shown. The Board has considered the Veteran's functional impairment due to pain and other factors during the claim period. However, the medical evidence simply does not reflect any additional functional loss due to pain, weakness, excess fatigability, or incoordination in the Veteran's ankles. As such, the Board finds that the DeLuca factors provide no basis for assignment of a rating in excess of 10 percent for the Veteran's bilateral ankle disability. The Board has considered the applicability of other, alternative diagnostic codes for rating the Veteran's ankle disability, but finds that no other diagnostic code provides a basis for higher rating. Ankylosis is not shown, and the service-connected ankle disability is not manifested by malunion of the os calcis or astragalus; nor is it characterized by astragalectomy. See 38 C.F.R. § 4.71a. The disability also has not been shown to involve any factors that warrant evaluation under any other provisions of VA's rating schedule. Extraschedular Consideration The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the case be referred to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities, such as further loss of range of motion, but the medical evidence reflects that those manifestations are not present in this case, even when functional losses due to pain, etc. are taken into consideration. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorders. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. ORDER Entitlement to a higher initial rating for right knee degenerative joint disease is denied. Entitlement to a higher initial rating for left knee degenerative joint disease is denied. Entitlement to a higher initial rating for right ankle strain is denied. Entitlement to a higher initial rating for left ankle strain is denied. ______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs