Citation Nr: 1321065 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 10-02 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial compensable disability rating for patellar chondromalacia of the left knee prior to October 13, 2010. 2. Entitlement to a disability rating in excess of 10 percent for patellar chondromalacia of the left knee since October 13, 2010. 3. Entitlement to an initial disability rating in excess of 10 percent for tenosynovitis of the left hip. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from January 2004 to January 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which granted her claims for service connection for left hip and left knee disabilities, with initial ratings of 10 percent and 0 percent, respectively. The Veteran appealed the initial ratings assigned for her disabilities. Thereafter, in May 2009, jurisdiction of this claim was transferred to the RO in Waco, Texas. A February 2011 rating decision increased the Veteran's left knee disability rating to 10 percent, effective from October 13, 2010. In light of the February 2011 rating decision, the Board has recharacterized the issues as listed on the cover page. On her January 2010 Appeal to Board of Veterans' Appeals (VA Form 9), the Veteran requested a Travel Board hearing before a Veterans Law Judge. However, she failed to appear at her scheduled hearing in December 2011. Accordingly, her request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issues on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. For the reasons explained below, the claim of entitlement to an initial rating in excess of 10 percent for a left hip disability is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on her part. FINDINGS OF FACT 1. Prior to October 13, 2010, the Veteran's left knee disability was manifested by subjective complaint of pain, but she had full range of motion and no objective findings of subluxation or lateral instability. 2. Since October 13, 2010, the Veteran's left disability is manifested by flexion limited to 100 degrees and full extension, with no objective findings of subluxation or lateral instability. CONCLUSIONS OF LAW 1. The requirements for an initial compensable disability rating for patellar chondromalacia of the left knee, prior to October 13, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5260, 5261 (2012). 2. The requirements for a disability rating in excess of 10 percent for patellar chondromalacia of the left knee, since October 13, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). However, the appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records have been obtained and considered. The Veteran was also afforded VA examinations in November 2007 and October 2010 in conjunction with the claim on appeal. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. Therefore, she was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Rating The RO granted service connection for left knee patellar chondromalacia in the July 2008 rating decision, assigning an initial noncompensable disability rating effective January 5, 2008, the day after the Veteran separated from service. In a February 2011 rating decision, the RO increased the Veteran's left knee disability rating to 10 percent, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5299-5260, effective October 13, 2010. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's left knee disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5014 as analogous to osteomalacia and later under Diagnostic Code 5260 based on limitation of motion. Under 38 C.F.R. § 4.71a, disabilities rated under Diagnostic Code 5014 are to be rated based upon limitation of motion of the affected parts pursuant to the criteria for arthritis. Pursuant to Diagnostic Code 5003 for arthritis, when the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Regarding limitation of motion, the Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2012). The normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71, Plate II (2012). Precedent opinions of the VA's General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 and 23-97. Another such opinion held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004, 69 FR 59988 (2004). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 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 disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). Recently, the Court clarified that 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). Prior to October 13, 2010 In this case, service treatment records note the Veteran complained of left knee pain beginning in November 2004. X-rays and an MRI in October 2005 show joint space narrowing and left patellar chrondomalacia. She was deployed in January 2006 and received treatment while in Afghanistan. Following service, her VA treatment records dated through October 2010 show the Veteran complained of left knee pain, but there are no objective or range of motion findings in these records. At the November 2007 VA examination, the Veteran reported flare-ups of left knee pain 2 to 3 times a week, with a severity of 5 out of 10. She stated the pain is precipitated by cold weather and impacts her activities. She denied using assistive devices and has no orthotics. The Veteran described pain with prolong sitting, climbing stairs, and running, but can walk four to five miles. On objective physical examination, her gait was normal with full weight bearing. There was tenderness to palpation to the medial knee, but no edema, effusion, redness, warmth, instability, weakness, deformity, or muscle atrophy. Anterior drawer sign, McMurray's test, and Lachman's test were negative. The examiner noted the Veteran's left knee is stable laterally and medially. Range of motion testing found flexion to be to 140 degrees and extension to 0 degrees, with no pain. The examiner also specifically commented that with repetitive flexion and extension activities, testing for pain, weakness, and fatigability showed no change in range of motion or pain pattern. The examiner diagnosed left knee pain due to patellar chondromalacia. During the period of the claim prior to October 13, 2010, the Veteran's range of motion has been full with no limitation of motion noted after repetitive motion activities. Thus, although subjective complaints of knee pain were reported, the record does not reflect functional impairment sufficient to support a compensable evaluation under the Diagnostic Codes 5014, 5003, 5260 or 5261. See DeLuca, supra; 38 C.F.R. §§ 4.40, 4.45, 4.71a. In the absence of competent evidence of diminished left knee motion, a compensable disability rating prior to October 13, 2010 is not warranted. Since October 13, 2010 In a February 2011 rating decision, the RO increased the Veteran's disability rating to 10 percent, pursuant to Diagnostic Code 5260, effective from October 13, 2010, the date of her most recent VA examination. The October 2010 VA examination report indicates that the examiner reviewed the claims file. The Veteran reported left knee pain and intermittent, but frequent, use of a brace. She also reported giving way, stiffness, swelling, and tenderness. She denied deformity, weakness, incoordination, decreased speed of the joint, dislocation or subluxation, locking, and effusion. Objectively, the examiner noted crepitation. Range of motion testing found flexion to be to 100 degrees, and extension to 0 degrees. The examiner noted there was objective evidence of pain following repetitive motion but no additional limitations. The examiner also determined there was no ankylosis present. Finally, the examiner noted that the functional impact of the left knee condition was decreased mobility and increased absenteeism. The Veteran is also unable to exercise and jog. The examiner determined that there was a moderate effect on her usual daily activities as a result of her left knee disability, including chores, shopping, exercise, travelling, and driving. Also of record are the Veteran's VA treatment records dating from October 2010 through February 2012. However, aside from her complaints of knee pain in a March 2011 record, there are no objective or range of motion findings. For the period since October 13, 2010, even taking into consideration the Veteran's reported pain on motion and functional impairment, the evidence shows that the Veteran's left knee flexion has been limited to no less than 100 degrees and with full (0 degrees) extension. Given the extent of motion demonstrated by the Veteran throughout the period at issue, the disability picture presented by the Veteran's left knee simply is not consistent with flexion limited to 30 degrees or extension limited to 15 degrees. Under the circumstances, a disability rating higher than 10 percent is not warranted. See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261. Other Considerations Relevant to Both Periods The Board has considered whether a higher or separate rating is warranted under other diagnostic codes. However, while the Veteran did report a feeling of giving way on the October 2010 VA examination, both VA examiners found her knee to be stable on objective testing. Subluxation has not been shown during the claim. Thus, a higher rating or separate rating under Diagnostic Code 5257 is not warranted. See 38 C.F.R. § 4.71a; see also VAOPGCPREC 23-97 and VAOPGCPREC 9-98. Similarly, as the Veteran's range of motion in both knees does not support even the noncompensable ratings under Diagnostic Codes 5260 and 5261, VAOPGCPREC 9-04 is not for application. VAOPGCPREC 9-2004, 69 FR 59988 (2004). Additionally, there is no evidence of dislocated semilunar cartilage or malunion or nonunion of the tibia or fibula to warrant consideration under Diagnostic Codes 5258 and 5262. In this regard, x-ray and MRI studies have shown chondromalacia, but have not indicated any cartilage, tibia, or fibula impairment. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. Indeed, she had full range of motion prior to October 13, 2010 and her range of motion thereafter does not rise to even a compensable level under Diagnostic Codes 5260 or 5261. The 10 percent rating presently assigned takes into consideration the functional impairment resulting from the objective findings and subjective complaints. Thus, her disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In summary, the most probative evidence of record fails to demonstrate that an initial compensable rating prior to October 13, 2010, and a rating in excess of 10 percent thereafter, is warranted for the Veteran's service-connected left knee disability. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to an initial compensable disability rating for patellar chondromalacia of the left knee prior to October 13, 2010, is denied. Entitlement to a disability rating in excess of 10 percent for patellar chondromalacia of the left knee since October 13, 2010, is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). With respect to the claim for an evaluation in excess of 10 percent for tenosynovitis of the left hip, the Board notes that in the December 2011 Statement of Accredited Representation and the June 2013 Appellate Brief, the representative stated that the Veteran's left hip pain has become progressively worse. Additionally, she states she has more flare-ups of pain now, which occur on a weekly basis and can last for hours. Review of the records from the Central Texas VAMC dated through February 2012 show she has continued to complain of pain in her left hip. The Veteran's left hip disability was last examined for VA compensation purposes in October 2010, a little less than 3 years ago. Since such time, the Veteran has alleged a worsening of her condition. Accordingly, the Board finds that a contemporaneous examination is warranted so as to determine the current nature and severity of her left hip disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Finally, any relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain relevant treatment records from the Central Texas VA Medical Center dating since February 2012. If the records cannot be obtained the Veteran should be notified of such. 2. After the above development has been completed to the extent possible, schedule the Veteran for a VA hip examination to address the severity of her tenosynovitis of the left hip. All tests deemed necessary should be conducted and the results reported. The examiner should report the range of motion of the left hip, to include the point at which pain begins, as well as any functional loss due to pain, weakness, or diminished endurance. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim for an increased rating for her left hip disability should be readjudicated. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K.A BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs