Citation Nr: 1320682	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  09-32 979	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to a rating in excess of 10 percent for the service-connected right knee patellofemoral syndrome with degenerative joint disease and history of avulsion fracture (excluding periods of hospitalization and convalescence when a 100 percent evaluation was assigned from December 9, 2009, to January 31, 2010).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse




ATTORNEY FOR THE BOARD

A. Michel, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1986 to February 1989.

This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  In that decision, the RO denied an increased rating, and continued the 10 percent disabling rating previously assigned, for the service-connected patellofemoral syndrome of the right knee with laxity of the anterior cruciate ligament and history of avulsion fracture of the anterior tibial spine (right knee disability). 

Subsequently, a temporary 100 percent evaluation was assigned from December 9, 2009, to January 31, 2010, as reflected on the title page.  Because the possibility exists for the assignment of a higher evaluation for portions of the appeal period outside of the temporary 100 percent evaluation period, the Veteran's claim remains in appellate status, and is characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993).  The Veteran has not asserted any disagreement with this temporary total rating assigned; therefore, the Board will not address this temporary evaluation period in the decision that follows.

In December 2012, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting at VA's Central Office in Washington, DC.  A transcript of his testimony is associated with the claims file.

When this case was previously before the Board in February 2013, it was remanded for additional evidentiary development; it has since been returned to the Board for further appellate action.

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.


FINDINGS OF FACT

Excluding the period when the Veteran was in receipt of a temporary 100 percent disability rating, the Veteran's right knee disability has been manifested by evidence of arthritis with non-compensable limitation of extension and flexion ( full extension and flexion limited to no worse than 125 degrees) with painful motion but no lateral instability or recurrent subluxation. 


CONCLUSION OF LAW

Excluding the period when the Veteran was in receipt of a temporary 100 percent disability rating, the criteria for a disability rating in excess of 10 percent for right knee disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261, 5262 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. 

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. 

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a)  (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

Although the Veteran was not provided complete notice with respect to his initial rating claim until August 2006, after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim.  There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time.  See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). 

The record also reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran has been obtained.  The Veteran was afforded appropriate VA examinations.  Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. 

Accordingly, the Board will address the merits of the Veteran's claim. 

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). 

Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint.  When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010.  For traumatic arthritis, Diagnostic Code 5010 directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that 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.  38 C.F.R. § 4.71a, Diagnostic Code 5010.  When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003.  In the absence of limitation of motion, X- ray evidence of arthritis involving two or more major joints or two or more minor joint groups will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating.  The above ratings are to be combined, not added under Diagnostic Code 5003.  38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1.

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§4.10, 4.40 and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.

With respect to joints in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more of less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59. 

Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight; a 20 percent evaluation if it is moderate; or a 30 percent evaluation if it is severe.  38 C.F.R. § 4.71a, Diagnostic Code 5257.

Limitation of flexion of the knee warrants a noncompensable rating if flexion is limited to 60 degrees; a 10 percent rating if flexion is limited to 45 degrees; and a 20 percent rating is flexion is limited to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.

Limitation of extension of the knee warrants a noncompensable rating if extension is limited to five degrees; a 10 percent rating is extension is limited to 10 degrees; and a 20 percent rating is flexion is limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

Dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5258.

The removal of semilunar cartilage warrants a 10 percent rating if it is symptomatic.  38 C.F.R. § 4.71a, Diagnostic Code 5259.

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 VA General Counsel also has held that separate ratings under 38 C.F.R. § 4.71a, 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).

Burden of Proof

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 

Evidentiary Background

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.4, 4.42 (2011) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability.  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 the disability.

Veteran seeks an increased disability rating for the service-connected right knee disability, currently rated as 10 percent disabling.  

Historically, service connection was initially established for a right knee disability in a December 1994 rating decision that assigned an initial 10 percent rating under Diagnostic Code 5299-5257, characterizing the disability as patellofemoral syndrome of the right knee with laxity of the anterior cruciate ligament and history of avulsion fracture of anterior tibial spine. 

The Veteran filed his claim for an increased rating in May 2006.

The Veteran submitted three lay statements in 2006, attesting to his worsening symptoms to include using ice and a wrap on his knee, no longer riding his bike or playing volley ball, limping, stretching due to stiffness and weakness, having difficulty getting up off the ground, guarding his right leg, and experiencing pain and soreness.

The Veteran was afforded a VA examination in August 2006 in which the examiner found no abnormalities of the right knee when compared to the left side on examination, except for the healed arthroscopy incisions.  There was no tenderness, swelling, instability or limitation of motion.  In contrast to the Veteran's assertions, the examination report noted that the Veteran denied locking, popping or other mechanical symptoms within the right knee; and, the Veteran denied any affect on his activities of daily living or any other functional limitation associated with reported flare-ups of pain and instability, other than an inability to do heavy lifting on the job.  Physical examination showed full extension to 140 degrees of flexion that was not decreased with repeated range of motion; varus and valgus stressing was from 0 and 30 degrees of flexion. The examiner referred to X-ray findings from studies taken on the same day which showed evidence of loose bodies and joint effusion, as well as degenerative type changes.  The diagnosis was healed right ACL avulsion fracture and right knee posttraumatic arthritis.  The examiner commented that despite the pathology, the Veteran continued to have good symptomatic control.  There was no additional functional impairment due to pain, pain with repetition, fatigue, weakness, lack of endurance, or incoordination.

The Veteran stated in his notice of disagreement in March 2007 that he had pain every day, his knee would swell on average at least once a week, he could no longer stand on it, that the right knee was larger and weaker that the left one, and that he could not straighten the right knee out all the way. 

The Veteran also stated in his formal appeal, VA Form 9, in August 2009 that he did not deny popping, cramping, and weakness of the right knee in his prior VA examination.  He stated that he could no longer ride his bike or walk any length of distance, had trouble standing, his knee would give out and he would stumble, climbing stairs caused stiffness, and the right leg felt fatigued a lot of the time.

The Veteran underwent another right knee arthroscopic surgery in December 2009.

The Veteran was afforded a VA examination in April 2011 in which he reported right knee pain, grinding, swelling, sharp and continuous pain, locking and buckling of the knee.  He reported that his pain was worse with walking, bending, sitting for an extended period of time, and stretching.  He stated that he was working full-time as a diesel technician.  The Veteran reported flare-ups of knee pain twice daily.  His functional impairment included pain and fatigue.  Physical examination showed guarding; no redness, warmth or discharge from the knee; normal sensation to light tough; no atrophy; range of motion was from 0 to 125 degrees with pain at both full extension and at 125 degrees.  Although no ligament laxity was noted on examination, the examiner found that the Veteran demonstrated a +1 laxity with both varus and valgus testing.  The Veteran also had a +1 Lachman's examination as well as a +1 drawer.  There was no additional functional impairment due to pain, pain with repetition, fatigue, weakness, lack of endurance, or incoordination.

The Veteran and his spouse testified before the undersigned in December 2012 as to his right knee symptoms to include trouble with bending and standing, stiffness in the morning, waking up in the middle of the night, an inability to go up and down the stairs and do yard work, instability about four or five times per week, swelling, and performing less activities in general.

In response to the Board's remand, the Veteran was afforded a VA examination in March 2013 in which the examiner diagnosed right knee osteoarthritis.  The Veteran reported pain aggravated by walking, stairs, squatting, and prolonged sitting.  He also reported having daily swelling, stiffness, and catching and locking.  He denied a history of dislocation or instability.  He stated that he had flare-ups approximately 2 times per month improved with medication.  The Veteran was wearing a right knee brace that was removed before examination.  Physical examination showed right knee flexion to 130 degrees with painful motion at 120 degrees and full extension.  There was no change with repetitive testing.  Functional loss was noted as pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing.  Muscle strength testing was normal.  Joint stability testing was normal.  Imaging studies showed right knee degenerative or traumatic arthritis.  His right knee was noted as affecting his employment by causing difficulty with climbing into trucks and squatting.  

The March 2013 VA examiner noted that there was no recurrent subluxation or lateral instability of the right knee.  The examiner opined that the Veteran sustained a service trauma to his knee that resulted in a tibial eminence fracture, which was the equivalent to an ACL tear; so it was more likely than not that the lateral meniscus tear confirmed on the knee MRI and arthroscopy from 1997 were a result of his in-service injury.  As a result of the ACL and meniscus injury, it was also more likely than not that the Veteran developed accelerated arthritis as both of these condition are known to result in increased contact pressure from the articular cartilage.   The evidence also supported the existence of knee osteoarthritis prior to May 2006.  The examiner opined that based on the operative note from the 2009 arthroscopy, there did not seem to be any other tears in the menisci, so it was more likely that the Veteran's symptoms were due to loose cartilage flaps from degenerative joint disease and not the meniscus tear.  The examiner stated that the Veteran experienced intermittent painful popping, locking, and swelling for over 10 years; these symptoms improved temporarily following his knee arthroscopy in 2009 but returned after a period of 3 months.  The examiner also stated that the 2009 arthroscopy was initially successful but symptoms later returned.

Analysis

The Veteran maintains that a rating in excess of 10 percent is warranted for the service-connected right knee disability (excluding periods of hospitalization and convalescence when a 100 percent evaluation was assigned from December 9, 2009, to January 31, 2010). 

Based on the X-ray findings and the VA examination report from August 2006, the RO issued a rating decision in December 2006 that confirmed and continued the previously assigned 10 percent rating for the service-connected right knee disability.  Significantly, the diagnosis of arthritis in the August 2006 examination was the basis upon which the RO continued the 10 percent rating.  Prior to this, the Veteran's service-connected right knee disability was rated pursuant to "other knee disabilities" on the basis of subluxation or lateral instability under Diagnostic Code 5257.  The RO indicated in the narrative portion of the rating decision that the continuation of the 10 percent rating was based on the Veteran's arthritis, but never explained why the rating code was changed from 5299-5257 to 5003-5262.  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 diagnosis and demonstrated symptomatology.  Any change in a Diagnostic Code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

The Board finds that the code change was appropriate as the objective medical evidence of record since May 2006 (since the claim for an increased rating was filed) does not show instability and/or subluxation of the right knee appropriate for compensable rating.  Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his service-connected right knee disability.  Excluding the period when the Veteran was in receipt of a temporary 100 percent disability rating, the evidence has not shown that the Veteran has recurrent subluxation or lateral instability.  Although the Veteran has complained of right knee instability and uses a right knee brace, there is no objective medical evidence of any lateral instability or subluxation.  Also, there is no evidence of dislocated semilunar cartilage. 

The Board acknowledges that the Veteran is competent to report that he experiences right knee instability, but the Board has determined that the objective medical findings are more probative than the Veteran's self-serving statements.  

The Veteran was assigned a 10 percent rating by analogy to diagnostic code 5003, degenerative arthritis, which permits a 10 percent rating to be assigned for painful motion of a joint.  While the Veteran is shown to have osteoarthritis in the right knee, there is no evidence to show that this symptomatology is separately disabling from that considered for the 10 percent rating.  See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (July 1, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998).

With respect to limitation of motion, the Board finds that the Veteran not entitled to separate rating under either Diagnostic Codes 5260 or 5261.  The evidence of record does not show that the Veteran's right knee flexion was limited to less than 60 degrees or that extension was limited to less than 5 degrees to allow for a separate rating.  At its worst, the Veteran's flexion was limited to 125 degrees with pain. Thus, both his right knee flexion and right knee extension are noncompensably disabling pursuant to Diagnostic Codes 5260 and 5261, respectively, and a separate rating is not warranted.

While there was painful motion noted during the VA examinations, there was no evidence of additional limitation of motion due to pain, weakness or instability.  The record also does not demonstrate loss of range motion upon repetition.  The most restrictive range of motion indicated by the evidence does not support a separate compensable rating for limitation of flexion or extension under the pertinent diagnostic criteria. 

The evidence of record also shows the Veteran has not been found to have dislocated semilunar cartilage with pain and effusion into the joint.  Therefore, a separate compensable rating under Diagnostic Code 5258 is not warranted.

The Board notes that VA must consider all favorable lay evidence of record.  38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  Accordingly, the Board has carefully considered the Veteran's correspondence to VA, the lay statements outlined above, and his testimony before the undersigned in which he generally alleges his right knee symptoms warrant a rating in excess of 10 percent.

A layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  

The Board has accepted the Veteran's account as competent.  However, the Board must find the objective medical findings to be more probative than the Veteran's self-serving statements. 

There is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40 , 4.45 and DeLuca, 8 Vet. App. at 204-7.

Ultimately, the Board finds that throughout the appeal period, the Veteran's right knee disability has most closely approximated the schedular criteria for the already assigned 10 percent rating. 

Additional Considerations

Consideration has been given to assigning staged ratings for his right knee disabilities; however, at no time during the period in question has the disability warranted more than the rating discussed above.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 

The Board has considered whether this case, or any component thereof, should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration.  

In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008). 

In this case the manifestations of the service-connected disability are contemplated by the schedular criteria.  The Board acknowledges the Veteran's assertion that his right knee disability caused disruptions at work.  The Board notes that the Veteran was compensated with a temporary total rating to compensate for his periods of convalescence following surgery, and medical records do not reflect symptoms that are not contemplated by the schedular criteria.  Moreover, significant medical records from VA show that the Veteran currently has a full-time job, even though his service-connected disability caused problems in his present employment.  The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order.

Finally, the Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. 

The Board acknowledges that the Veteran is working, and the record does not include any evidence, to include history, of inability to maintain or obtain employment due to the right knee disability.  Hence, further consideration of TDIU is not warranted.


ORDER

Entitlement to a rating in excess of 10 percent for the service-connected right knee patellofemoral syndrome with degenerative joint disease and history of avulsion fracture is denied.



____________________________________________
MICHAEL PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs