Citation Nr: 1322820 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 06-38 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable rating for right knee internal derangement. 2. Entitlement to a disability rating in excess of 10 percent for left knee chondromalacia patella with degenerative tears to the medial and lateral meniscus. 3. Entitlement to a disability rating in excess of 10 percent for right ankle sprain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1976 and on active duty for training from March 1986 to May 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2006, November 2006, and January 2008 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The February 2006 rating decision granted service connection for right ankle disability and assigned it a 10 percent rating and the January 2008 rating decision granted service connection for right knee disability and assigned it a noncompensable rating. The November 2006 rating decision denied an increased rating for the Veteran's service-connected left knee disability. The Veteran presented testimony at a Board videoconference hearing in June 2012, and a transcript of the hearing is associated with his claims folder. The appeal on a claim for service connection for gastroesophageal reflux disease was dismissed by the Board in October 2012, and the issues currently on appeal were remanded to the RO for further development at that time. FINDINGS OF FACT 1. The Veteran's right knee does not have limitation of flexion to 45 degrees, limitation of extension to 10 degrees; or slight recurrent subluxation or lateral instability. 2. The Veteran's left knee does not have limitation of flexion to 30 degrees; limitation of extension to 10 degrees; or slight recurrent subluxation or lateral instability. 3. The Veteran does not have marked limitation of motion of his right ankle. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right knee internal derangement are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2012). 2. The criteria for a disability rating in excess of 10 percent for left knee chondromalacia patella with degenerative tears to the medial and lateral meniscus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5010-5257 (2012). 3. The criteria for a disability rating in excess of 10 percent for right ankle sprain are not. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by letters dated in September 2006 and October 2006. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). Failure to give the notice required for the right ankle claim is harmless, as service connection was granted for it in February 2006. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist a claimant under the VCAA. VA has obtained VA medical records; assisted the Veteran in obtaining evidence; examined the Veteran for his knee and ankle disabilities in 2005, 2008, 2011, and 2013; and afforded the Veteran the opportunity to give testimony before the Board. The Board finds the several evaluations of the knees and right ankle to be adequate for rating purposes. The examinations reported results to allow for application of VA rating criteria. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's October 2012 remand by soliciting private medical records, examining the Veteran, and readjudicating the claims. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 U.S.C.A. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App.202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). With any form of arthritis, painful motion is an important factor of disability. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as at least minimally compensable. 38 C.F.R. § 4.59. Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion in degrees. Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board has considered all evidence of record (including that found on Virtual VA, VA's electronic data storage system). Knees The Veteran appeals for a rating greater than 10 percent for his left knee and a compensable rating for his right knee. The RO has rated the Veteran's left knee disability under Diagnostic Code 5010-5257, and the right knee under Diagnostic Code 5257. Diagnostic Code 5010 is for traumatic arthritis, which is to be rated as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 indicates that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Code for the specific joint involved. When, however, the limitation of motion of the specific joint or joints 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. 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 (degenerative arthritis). Diagnostic Code 5257 is for other knee impairment. Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II (2012). Under Diagnostic Code 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A knee disability can be rated for both limitation of leg flexion under Diagnostic Code 5260 and limitation of leg extension under Diagnostic Code 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). In addition to the ratings based on limitation of motion, a separate rating may be assigned for instability of the knee. See VAOPGCPREC 23-97 (July 1, 1997). Under Diagnostic Code 5257, other knee impairment with slight recurrent subluxation or lateral instability warrants a 10 percent rating. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. On VA examination in January 2008, the Veteran had some boggy synovitis of his right knee, without effusion. His right knee was stable to varus and valgus stress testing. There was some joint line tenderness. McMurray's, Lachman, and anterior posterior drawer tests were negative. The right leg had good motor function. Range of motion of the right knee was from 0 to 130 degrees actively, passively, and against resistance. There was no pain, fatigue, or incoordination with repetitive motion. The diagnosis was right knee internal derangement. On VA examination in July 2008, the Veteran's left knee had some peripatellar effusion but there was no tenderness or swelling in the joint. He flexed his left knee to 140 degrees and extended it to 0 degrees. Repeat flexion and extension produced no indication of pain, weakness, or fatigue. Lateral and medial stress of the knee showed no laxity of the lateral or medial collateral ligaments, and the Veteran had a negative anterior posterior drawer sign which indicated intact anterior and posterior cruciate ligaments. He had a negative McMurray's sign and walked without indication of a limp. July 2008 X-rays of the Veteran's left knee showed mild medial joint space narrowing and small marginal osteophytes. On May 2011 VA examination of the Veteran's knees, there was no effusion and each knee was stable to varus and valgus stress testing. Lachman, McMurray, and anterior and posterior drawer tests were negative. Motor function was 5/5 in all muscle groups. The thighs were equal at 19.5 inches, and the calves were equal at 15.5 inches. There was tenderness to palpation over the midportion of the patellar tendon bilaterally and a positive grind test. Range of motion was from 0 to 130 degrees, actively, passively, and against resistance. There was no pain, fatigue, weakness, or incoordination with repetitive motion in either plane, and he had a slow, non-antalgic gait. The Board remanded the case to the RO in October 2012 for a VA examination, as the Veteran indicated during his June 2012 hearing that his disabilities had become worse since the May 2011 VA examination. On VA examination in January 2013, the Veteran reported that his knees prevent him from going up stairs due to pain. On examination, the Veteran was able to flex his knees to at least 135 degrees without objective pain, and he had no antalgic gait. Observed range of motion at various points during his examination showed him to have extension to at least 5 degrees. While the Veteran would demonstrate only 105 degrees of flexion of the left knee, and only 110 degrees of flexion of the right knee on direct examination, the examiner felt that this was not valid for rating purposes as he had observed greater range of motion at other times during the examination. There was no ligamentous instability. The right knee had a slight effusion. Straight leg raising against resistance produced no pain or crepitus. There was very minimal patellar crepitus in the left knee, and such was not painful. Muscle strength was 5/5 for knee flexion and extension bilaterally, and there was no instability of either knee. The examiner felt that there was no additional range of motion loss due to pain, weakened movement, excess fatigability, or incoordination on movement. The examiner indicated that there was no arthritis documented and that the Veteran's knee conditions did not impact his ability to work. Based on a review of the evidence, the Board finds that the criteria for a 10 percent rating for the Veteran's right knee internal derangement are not met or nearly approximated. None of the range of motion testing suggested limitation of flexion to anywhere near 45 degrees, even with any additional functional loss due to DeLuca factors which may be present. There is also no evidence showing limitation of extension to 10 degrees to warrant a compensable rating under limitation of extension criteria. Regarding the left knee, none of the range of motion testing suggested limitation of flexion to anywhere near 30 degrees, even with any additional function loss due to DeLuca factors which may be present. There is also no evidence showing limitation of extension to 10 degrees to warrant a compensable rating under limitation of extension criteria. Recurrent subluxation or lateral instability of either knee is not shown, moreover. All knee ligament examinations have shown that the ligaments are stable. Slight or more recurrent subluxation or lateral instability or either knee is not shown or nearly approximated. In sum, a compensable rating is not warranted for the right knee and a disability rating in excess of 10 percent is not warranted for the left knee. Right ankle The Veteran appeals the RO's denial of a rating greater than 10 percent for right ankle sprain. Under 38 C.F.R. § 4.71a, Diagnostic Code 5271, a 10 percent rating is warranted for moderate limitation of motion of an ankle. A 20 percent rating requires marked limitation of motion of an ankle. Normal dorsiflexion of the ankle is to 20 degrees, and normal plantar flexion is to 45 degrees. 38 C.F.R. § 4.71, Plate II (2012). On VA examination in June 2005, the Veteran had mild swelling of his right ankle and evidence of tenderness. Its dorsiflexion was to 10 degrees, and its plantar flexion was to 40 degrees, with pain at the ends of motion. An X-ray was normal. On VA examination in July 2008, the Veteran plantar flexed his right ankle to 55 degrees, and dorsiflexed it to 15 degrees. The foot supinated to 35 degrees and pronated to 20 degrees. Repeated motion of the ankle did not limit range of motion. There was no tenderness or swelling or instability, and the Veteran walked without a limp. X-rays of the right ankle were normal. The assessment was mild right ankle instability. On private evaluation in August 2009 for right ankle sprain, the Veteran's right ankle was tender to palpation at the lateral malleolus and anterior talofibular ligament, with soft tissue swelling. Motrin, an ankle brace, and physical therapy were prescribed. On VA examination in May 2011, the Veteran's calves were equal at 15 inches. The right ankle showed mild laxity with inversion but had a negative drawer test. The Veteran complained of pain with motion of the ankle, but there was no crepitus, and motor function was 5/5 in all muscle groups. Dorsiflexion was to 25 degrees, and planter flexion was to 40 degrees, actively, passively, and against resistance. There was no increased pain, fatigue, weakness, or incoordination with repetitive motion and his gait was not antalgic. The Board remanded the claim to the RO in October 2012, as the Veteran had alleged during his June 2012 hearing that since his May 2011 examination, his disability had become worse. On VA examination in January 2013, the Veteran reported right ankle swelling every day and severe pain. On examination, plantar flexion was to 40 degrees, and dorsiflexion was to 20 degrees, both prior to and after repetitive testing. There was no objective evidence of painful motion, although the Veteran complained of subjective pain with active and passive range of motion. He did not have tenderness or pain on palpation of the joints or soft tissue of his ankle, and his plantar flexion and dorsiflexion strength was 5/5. There was no joint laxity on stress testing. Based on a review of the evidence, the Board finds that the criteria for a rating greater than 10 percent for the Veteran's service-connected right ankle disability are not met or nearly approximated. None of the examination reports show marked limitation of motion of the right ankle or indicate that it is nearly approximated. Instead, on each examination during the claim period, the Veteran has had at least 40 out of a normal 45 degrees of plantar flexion, and at least 10 out of a normal 20 degrees of dorsiflexion. Extra Schedular Considerations The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected disabilities are so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). 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 Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disabilities with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation 38 C.F.R. § 3.321(b)(1) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the Board finds that the rating criteria used to evaluate the Veteran's service-connected disabilities reasonably describe his disability levels and symptomatology. The schedular criteria, in general, 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. 38 C.F.R. § 4.1 (2012). Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). The Veteran's June 2002 testimony that he was considering a career change as he cannot stand in shelters (which is required for his work) has been considered. However, the Board stresses that ratings are to be based on the average impairments of earning capacity resulting from the disease or injury in question, under 38 U.S.C.A. § 1155, and reiterates that the rating criteria reasonably describe his disability levels and symptomatology. After reviewing the totality of the evidence, the Board finds that the preponderance of the evidence is against entitlement to ratings in excess of those assigned by the RO. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Should any of the disabilities increase in severity in the future, the Veteran may always file claims increased ratings. Lastly, the Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, an unemployability claim has not been reasonably raised by the record. Instead, the reports are to the effect that the Veteran remains employed, and his most recent VA examiner in January 2013 indicated that his knee and lower leg conditions did not impact his ability to work. ORDER A compensable rating for right knee internal derangement is not warranted. A disability rating in excess of 10 percent for left knee chondromalacia patella with degenerative tears to the medial and lateral meniscus is not warranted. A disability rating in excess of 10 percent for right ankle sprain is not warranted. The appeals are denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs