Citation Nr: 1320473 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 05-39 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an evaluation in excess of 10 percent for left knee osteoarthritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1963 to September 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania which assigned an increased evaluation of 10 percent effective March 15, 2005 for the Veteran's left knee arthritis. The Veteran testified at a Board hearing at the RO in Philadelphia, Pennsylvania in March 2008. This transcript has been associated with the file. The Veteran was notified in June 2012 that the Judge who held his hearing had retired from the Board. He was informed that he could have an additional hearing with a new Judge who would ultimately decide his appeal. In this letter he was advised that if he did not respond within 30 days the Board would assume he did not want an additional hearing. As the Veteran did not respond to this letter within 30 days, the Board has proceeded with adjudication. The case has been brought before the Board on multiple occasions. In June 2008, May 2009, May 2010, and most recently in February 2013 the Board determined additional development was needed by the Agency of Original Jurisdiction (AOJ) to further assist the Veteran. In the February 2013 Board remand the Board requested the Veteran's most recent VA treatment records be included in the claims file and the Veteran be scheduled for a VA examination. His VA treatment records have been associated with the claims file and he was scheduled for a VA examination in March 2013. However, he failed to report for this examination and has offered no statement of good cause as to why he did not attend. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDING OF FACT The Veteran's left knee arthritis is manifested by x-ray evidence showing degenerative arthritic changes. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left knee arthritis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in April 2005 and January 2007. The April 2005 letter advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The January 2007 letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the June 2005 rating decision, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, statement of the case, and supplemental statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Veteran has neither alleged nor proven that prejudice resulted from lack of proper VCAA notice, and therefore, the Board determines that none resulted. See Shinseki, supra. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran's service treatment records and VA treatment records are in the file. There have been numerous attempts to locate private treatment records from a Dr. V. Although the Veteran submitted a release for the records in March 2008, the RO requested an additional release in July 2008. The Veteran did not respond to this request and the March 2008 release lapsed as it was only valid for 180 days. In May 2009 the RO requested that the Veteran submit an authorization to release the records from Dr. V. to the VA. The Veteran did not respond to this request. Most recently in June 2010 and May 2011 the RO requested the Veteran submit an authorization to release these records to the VA, but the Veteran did not respond to these requests. The Veteran is reminded that the duty to assist him with his claim is not a one-way street. If he wants help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The RO cannot obtain the Veteran's private treatment records without his authorization and as he has not provided this necessary authorization, or indicated that records specifically relevant to this claim need to be obtained, the Board finds that the duty to assist him in obtaining all potentially pertinent medical records has been satisfied. 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). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded multiple VA medical examinations, most recently in December 2008, to determine the severity of his left knee arthritis. These opinions were rendered by medical professionals following a thorough examination and interview of the Veteran and review of the claims file. The examiners obtained an accurate history. The examiners provided a detailed explanation for the opinions that were reached. Although the Veteran was scheduled for a VA examination in March 2013, he failed to report or offer a statement as to why he could not attend the examination. Accordingly, the Board will proceed based on the evidence of record. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Therefore, the Board finds that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The Veteran's left knee arthritis is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under this Diagnostic Code degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint involved is not compensably disabling under the appropriate diagnostic codes, a rating of 10 percent is assignable for each major joint or group of minor joints affected by limitation of motion. See 38 C.F.R. § 4.71a; see also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (painful motion of a major joint caused by arthritis is deemed to be limited motion and entitled to a minimum 10 percent rating even though there is no actual limitation). The normal range of motion of the knee for flexion is 0 to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a zero percent evaluation is awarded where flexion is limited to 60 degrees. A 10 percent evaluation is awarded where flexion is limited to 45 degrees. A 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to 5 degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees and when extension is limited to 45 degrees, a 50 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5261. VA's General Counsel has held that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and a Veteran also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. If a Veteran does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). However, if a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Diagnostic Code 5257) a separate 10 percent rating may be assigned where there is X-ray evidence of arthritis and evidence of painful motion. See VAOPGCPREC 9-98 (August 14, 1998), published at 63 Fed. Reg. 56,704 (1998); 38 C.F.R. § 3.59. Separate ratings under 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. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Specifically, where a Veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. At his April 2005 VA examination the Veteran reported experiencing the most knee pain on pivot movements. X-rays of the left knee showed osteoarthritis changes. He had a normal gait. On range of motion testing he had full extension and flexion limited to 100 degrees. At his November 2006 VA examination the Veteran again reported pain when making a pivot movement with his left knee. He had no impairment in working driving trucks. On range of motion testing he had full extension and flexion limited to 100 degrees. There was no complaint of, or diagnosis for, instability. At his March 2008 Board hearing the Veteran testified that he experienced pain and swelling in his left knee and that he had trouble bending it. He also testified he had trouble standing up, especially after squatting, and that he had experienced instability. The Veteran was afforded a VA examination in December 2008. He reported left knee pain, described as mild to moderate. He had a moderate antalgic gait. He also reported problems at work with standing and walking more than an hour, walking up and down steps, climbing, and squatting. He had flexion to 130 degrees with pain, with no change on repetitive testing. The examiner specifically noted no instability. The Veteran has been assigned a 10 percent rating for arthritis of the left knee. The Veteran's left knee arthritis does not involve 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, so a higher rating cannot be granted under 38 C.F.R. § 4.71a, Diagnostic Code 5010 for arthritis. The Board has also considered the rating criteria for limitation of motion and if the Veteran would be more appropriately rated under these Diagnostic Codes. Applying the range of motion measurements to the general ratings formula, the above evidence demonstrates the Veteran is not entitled to a separate or higher evaluation due to limitation of motion. He has full extension and a higher rating could not be obtained under 38 C.F.R. § 4.71a, Diagnostic Code 5261. He has left knee flexion to 100 degrees, which does not warrant a compensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260. Accordingly, there is no evidence a higher rating is warranted for limitation of motion. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that more nearly approximates the current assigned rating. See 38 C.F.R. § 4.7. In evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca, supra. Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The April 2005 and November 2006 VA examination reports noted no limitation by fatigue, weakness or lack of endurance. The December 2008 examiner specifically noted range of motion was not limited by fatigue, weakness, or lack of endurance. The Board has considered the Veteran's complaints of pain, particularly on flexion. See, e.g., December 2008 VA examination report. However, the objective evidence of record indicates that pain does not limit the Veteran's functional range of motion of the knee to less than those levels discussed above and does not serve as a basis for an increased evaluation of the left knee due to functional limitation. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) ('pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.') The Board has also considered the potential applicability of other diagnostic codes for the Veteran's left knee disability. However, no separate or higher evaluation is warranted under any of the other diagnostic codes related to knee disabilities. The Veteran does not have ankylosis and Diagnostic Code 5256 is not for application. The Veteran also does not have recurrent instability or subluxation and Diagnostic Code 5257 does not apply. Diagnostic Codes 5258 and 5259 pertain to dislocated and removal of semilunar cartilage, which the Veteran has not had in any treatment record. Moreover, there is no evidence the Veteran has nonunion or malunion of the tibia or fibula. Diagnostic Code 5262 is therefore inapplicable. Furthermore, there is no evidence that the Veteran has genu recurvatum and as such Diagnostic Code 5263 is not applicable. In addition to the medical evidence, the Board has considered the Veteran's statements and testimony in support of his claim. See e.g., March 2008 Board hearing transcript. The Veteran, as a layman, is competent to report matters of which he has personal knowledge, such as pain and limitation of motion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); 38 C.F.R. § 3.159(a)(2). However, as a layman without the appropriate medical training and expertise, the Veteran is not further competent to provide a probative opinion on the severity of his left knee disability in relation to the applicable rating criteria. Medical examiners, including the VA compensation examiners, have measured the objective range of motion testing and evaluated x-rays in determining the overall severity of his left knee disability. This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Veteran is not entitled to a higher evaluation for his left knee disability at any point during the appeal period. The Board has considered whether the benefit of the doubt rule applies to the present appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claim for an increased evaluation must be denied. Extra-Schedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional 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 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, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). The Veteran's service-connected left knee arthritis is appropriately evaluated. His primary symptoms are limitation of motion, pain, and arthritis. All of his symptoms are accounted for in the regular schedular rating criteria. 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. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired. As the assigned schedular evaluation for the service-connected left knee disability is adequate, referral for an extra-schedular rating is unnecessary. Thun, supra. Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting he is not adequately compensated for this disability by the regular Rating Schedule. Extra-schedular referral is not warranted under the circumstances presented. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Entitlement to an evaluation in excess of 10 percent for left knee arthritis is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs