Citation Nr: 1320229 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 07-36 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a rating higher than 10 percent for dislocation of the left patella with instability and possible bipartite patella. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from August 2001 to August 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Boston, Massachusetts, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The Veteran's left knee disability is characterized by no more than slight instability; the Veteran has pain, but it does not result in disability equating to a compensable limitation of motion. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for dislocation of the left patella with instability and possible bipartite patella have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this 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. Id. at 486. 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, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in September 2006 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has reviewed such 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 claim. The Veteran has been examined and the examination report includes findings necessary to apply pertinent rating criteria. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Veteran was originally granted service connection for dislocation of the left patella with instability and possible bipartite patella in a November 2003 rating decision and assigned a 10 percent disability evaluation under Diagnostic Code 5257, effective November 18, 2002. This effective date was changed to August 30, 2002, by a July 2005 rating decision. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The following analysis is therefore undertaken with consideration that different (staged) ratings may be warranted for different time periods during the claim period. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Diagnostic Code 5257 provides criteria for evaluating knee disabilities based on recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. A slight disability warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5257. A moderate disability warrants a 20 percent evaluation. Id. A severe disability warrants a 30 percent evaluation. Id. It should also be noted that separate evaluations may be assigned for separate symptoms, such as arthritis. See VAOPGCPREC 23-97 (July 1, 1997). Specifically, VA's General Counsel has held that when x-ray findings of arthritis are present and a veteran's knee disability is evaluated under Code 5257, the Veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in limitation of motion. See VAOPCGPREC 9-98 (Aug. 14, 1998). However, the Veteran has not been service connected for arthritis of the knee. Limitation of motion of the knee is evaluated under Diagnostic Code 5260 (for limitation of flexion) and Diagnostic Code 5261 (for limitation of extension). Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II (2012). Under Diagnostic Code 5260, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 dictates that extension limited to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling, and extension limited to 20 degrees is 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5261. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). If the criteria for a compensable rating under both Diagnostic Codes 5260 and 5261 are met, separate ratings can be assigned. VAOPGCPREC 9-2004 (Sept. 17, 2004). As an initial matter, the Board notes that the Veteran's left knee disability has been given multiple diagnoses during the claim period. As the Board's concern is the severity of the Veteran's current left knee symptoms and there is no indication that these symptoms are attributable to a combination of service connected and non-service connected disabilities, the various diagnoses do not affect this decision. All of the Veteran's left knee symptoms are considered below; however, as noted above, service connection has not been awarded for arthritis. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam)(requiring medical evidence to differentiate between symptomatology attributed to a non-service-connected disability and a service-connected disability). In October 2006, the Veteran underwent a VA examination in conjunction with this appeal. Subjectively, the Veteran reported increased discomfort during cold weather and had occasionally felt a clicking sensation. He reported no treatment for this disability since his separation from service. He required no medication for this disability, but on rare occasions would use a neoprene non-hinged knee brace. He denied any instances of frank dislocation requiring medical treatment. The Veteran's gait was normal, without limp or other evidence of favoring his left leg. There was no swelling of palpable effusion of the left knee. His patella tracked well in flexion and extension with no evidence of hypermobility to passive strain. Repetitive testing found full range of motion without palpable or audible clicking. There was no instability on varus or valgus strain and all ligaments (anterior cruciate, medical collateral, and lateral collateral) appeared completely stable. Both anterior drawer sign and Lachman's test were negative. There was no evidence of quadriceps muscle atrophy as the Veteran's thighs were measured and identical measurements were found. Thus, this examiner found that the Veteran had a history of acute traumatic dislocation of the left patella with no objective evidence of recurrent dislocation or residual patellofemoral instability. VA treatment records from April 2007 show full range of motion of the knees without synovial thickening or laxity, good quadriceps, and minimal tenderness to patellofemoral motion on the left. The Veteran declined any consideration of surgery and was referred to physical therapy. VA physical therapy records from April 2007 to May 2007 show a diagnosis of chondromalacia of the patella. The physician observed that the Veteran was independent with transfers and able to ambulate safely and correctly without an assistive device. The Veteran's quadriceps were well developed. He reported pain and decreased strength. No instability was noted. Varus/valgus, Lachman, McMurray, and anterior drawer tests were all negative. Apprehension sign was positive. His range of motion was within functional limits, but pain in the left hamstring was noted (at 70 degrees in April and at 77 degrees in May). Strength and motor control were likewise within functional limits except for left knee extension and hip adduction, which were 4/5. During this period of physical therapy, the Veteran was instructed on how to perform certain exercises for his left knee. VA physical therapy records from May 2007 note that the Veteran stopped doing the quadriceps exercises because they were uncomfortable. After review, it was determined that the Veteran was activating the quadriceps too vigorously. The therapist corrected the Veteran's form and the Veteran was able to complete the exercises properly without pain or other adverse symptoms. Ober test was positive. Physical therapy records from later that month show improvement in the Veteran's ability to perform these exercises. He reported that certain motions, such as twisting, still resulted in pain and, as a result, he avoided these motions. The Veteran tolerated the treatment well without adverse symptoms and left the clinic after each session without any apparent difficulty. In his lay statements, the Veteran reported symptoms including inability to put extra weight on the knee in a fully squatted position or perform a one-legged squat without injury; favoring of the left leg during exercise (particularly fast twisting motions) in order to avoid dislocating the knee again; knee pain when lifting weight with left foot; knee pain with kneeling or putting pressure on the knee, pain with certain activities (such as bicycling, karate, jogging, and prolonged walking); and inability to safely skateboard, rollerblade, ski, or certain other exercises (such as the leg press machine). See the Veteran's statements dated August 2007 and October 2007. The Board finds that these specific activities fall under the general categories of exercise or sports. Additionally, he reports inability to hop on the left leg or jump from an elevated position without further injury, additional pain caused by cold weather; a loose patella, and clicking and popping when bending the knee. See id. The Veteran also reported two instances of "almost" dislocating his knee by falling in a hole and by exercising. See id. He further stated that he was no longer able to pursue certain trade colleges, security, or certain recreational activities due to this injury. See id. He describes this disability as permanently disfiguring and affecting mobility. See id. The Veteran underwent another VA examination in June 2010. At that time, the Veteran treated this disability with medication (NSAIDS), a knee brace (intermittent or occasional use), limitation of activity, and an exercise program. The Veteran's left knee symptoms were listed as deformity, giving way, instability, pain, stiffness, weakness, decreased speed of joint motion, and tenderness. There was no evidence of incoordination, episodes of dislocation or subluxation, or locking episodes. The examiner found no constitutional symptoms of arthritis. There were no incapacitating episodes and no functional limitations to standing or walking. Physical examination found that the Veteran's gait was normal and there was no other evidence of abnormal weight bearing. There was no bone loss or inflammatory arthritis. There was tenderness and crepitus with patella abnormality (abnormal tracking and subpatellar tenderness), but no clicks, snaps, grinding, instability, bumps consistent with Osgood-Schlatter's Disease, or meniscus abnormality. The Veteran's range of motion was from zero to 130 degrees bilaterally, with objective evidence of pain on the left side. Repetitive motion produced additional pain, but no additional functional limitations. There was no joint ankylosis. Radiologic testing revealed minimal degenerative changes, but no acute fracture, dislocation, or joint effusion. This disability was found to prevent sports and moderately affect the Veteran's ability to exercise, but otherwise his usual daily activities were not affected. With regard to left knee instability the objective evidence of record indicates no more than a slightly unstable left knee as required for the current 10 percent evaluation, with many of the objective findings suggesting no instability. Despite the inconsistent objective findings regarding instability, the occasional complaint of instability and clinical findings do not suggest a disability greater than that contemplated by the 10 percent rating. In order to warrant a higher evaluation for instability, the Veteran's left knee disability must be characterized by moderate subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran's subjective complaints do not warrant a finding of moderate instability in light of the objective evidence to the contrary and given his ability to painlessly perform exercises in conjunction with his physical therapy treatment and to ambulate without difficulty. As such, a higher evaluation based on instability is not assignable. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran's range of motion has been recorded as no worse than from zero degrees extension to 130 degrees flexion, with pain, but without additional limitation after repetitive use. See June 2010 VA examination. The Board notes that this examination shows that the Veteran's flexion was 130 degrees bilaterally, not just in the service-connected left knee. The Veteran's limitation of motion of the left knee is not sufficient to warrant compensation under Diagnostic Code 5260, which requires limitation of flexion to 45 degrees or less, or Diagnostic Code 5261, which requires limitation of extension to 10 degrees or more, much less separate compensable evaluations under both, even with consideration of painful motion and any other functional loss. Moreover, there is no finding of ankylosis that would warrant an evaluation under Diagnostic Code 5256. Thus, the Veteran's limitation of motion of the left knee does not warrant a separate evaluation. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The Board has also considered whether evaluation under another diagnostic code is appropriate. In this regard, there is no evidence of genu recurvatum or impairment of the tibia or fibula. See e.g., March 2009 VA examination. Thus evaluation under Diagnostic Codes 5262 or 5263 is not warranted. There is no evidence of a meniscus condition with cartilage dislocation or removal. As such, a separate compensable evaluation under Diagnostic Code 5258 or 5259 is not warranted. As explained above, the preponderance of the evidence is against the assignment of an evaluation in excess of the currently assigned 10 percent for the Veteran's left knee instability. Additionally, the Board determines that preponderance of the evidence is against the assignment of a separate evaluation for other functional losses due to pain, ratable as limitation of motion. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against a higher rating or additional separate ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim 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). 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 disability, such as limitation of motion, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As noted above, all of the Veteran's objective and subjective symptoms have been considered in the current left knee disability evaluation. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. ORDER Entitlement to a rating higher than 10 percent for dislocation of the left patella with instability and possible bipartite patella is denied. ______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs