Citation Nr: 1323673 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 06-10 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a disability rating in excess of 20 percent for degenerative changes of the left knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from November 1982 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The entire claims folder, to include the portion contained in the electronic "Virtual VA" system, has been reviewed. FINDING OF FACT The Veteran does not experience limitation in extension or instability in the left knee; there is limitation of flexion that is not severe enough, in itself, to be compensable, along with a marked cartilage tear and associated locking and effusion in the left knee joint. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 20 percent for degenerative changes of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5014, 5256-5263 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the Veteran with a claim. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) and, inform the claimant about the information and evidence the claimant is expected to provide. Although no longer required, in this case it was requested that the claimant provide any evidence in his possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Here, in a June 2003, the Veteran was notified of these requirements. The Veteran is represented by The American Legion, and that organization is presumed to have knowledge of what is necessary to substantiate a claim for a higher rating for a knee disability. Neither the Veteran nor his representative has pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post-service pertinent medical records, including VA examination reports. There is no indication of any additional relevant evidence that has not been obtained. With respect to the clinical examinations, the Board finds that the Veteran was provided thorough VA examinations which are adequate for rating purposes; there is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2012). Legal Criteria-Increased Ratings Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should 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. See 38 C.F.R. § 4.7. For claims for an increase that do not rise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In the current case, the Board has considered such a rating and deems it inapplicable. In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2012). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2012). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2012). VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." Analysis The Veteran is currently in receipt of service-connected compensation benefits for degenerative changes in the left knee. He contends, in essence, that he is entitled to a higher degree of compensation than that currently assigned. That is, he alleges that his knee disability has grown in severity so as to warrant a higher disability evaluation. The record contains several VA examination reports, as well as clinical records that document the severity of the left knee disorder. The Veteran initially filed a notice of disagreement with a December 2003 rating decision, and clinical records proximate to that time show that, in April 2003, the Veteran experienced mild effusion in the left knee that was tender to palpation. Flexion and internal rotation were along the medial side of the knee, and eternal rotation of the flexed knee did not produce pain. A VA examination was scheduled in 2003; however, the Veteran did not report to an examination at that time. Subsequent to this, however, the Veteran was afforded examinations in 2005 and 2013. Indeed, in January 2005, a VA examination report noted that the Veteran experienced constant pain at a 6/10 in intensity. The pain was localized to mainly the back of the knee, and there had been knee aspirations and steroid injections performed to alleviate his discomfort. VA clinical records confirm consultations for pain and the prescription of narcotic painkillers. The Veteran reported swelling and locking, and stated that he has to take pain medication when flare-ups occur, and that he will leave work from time-to-time because the usage of such medication. The Veteran was employed at the railroad, and stated that he had two flare-up periods per month (roughly). The Veteran noted that he had a flare-up in his previous job as a fireman, and that due to a twisting injury associated with that pain, he missed work for a week on one occasion. Range of motion findings were 0-130 degrees. Pain was present with repetitive motion. There was no noted fatigability, weakness, or lack of endurance. Patellofemoral crepitus and medial joint line pain were present. Grade I valgus laxity was noted, with negative Lachman's testing results. The Veteran had no varus instability noted in the joint. Patellofemoral chondromalacia of the knee was assessed. The Veteran submitted a private medical letter, dated in March 2010, which described the progression of the Veteran's knee disability. The Veteran's private family practice physician noted that the Veteran had been to several specialists to control his knee pain, and that narcotics and various other palliative measures had been described. It was reported that the Veteran had crepitus bilaterally in the knees, and that pain was elicited in the patellar grind test. There was no laxity in the ligaments, and muscle strength was 5/5. There was some left knee effusion present. Essentially, the physician concluded that the Veteran's knee has continued to hurt since 2005, and that "all options have been exhausted except for surgery." It was the opinion that a "significant disability" existed as due to chondromalacia. In response to this notification, the Veteran was afforded another VA examination. The associated report, dated in February 2013, noted that the pathology of the left knee included chondromalacia and a medial meniscal tear as well as osteoarthritis. The Veteran stated that he used to receive injections to the knee; however, his last treatment was in 2011 as the effectiveness was much less than in previous treatments. The Veteran stated that his knee will occasionally "give out" on him, and that "locking" occurs three to four times a day. The Veteran stated that he had worn a brace in the past, but that as it bruised him, he was looking for one that had shorted metal supports. Left knee flexion was to 110 degrees, with painful motion occurring at that terminal point. There was no noted limitation of extension, and no evidence of painful extension. The Veteran was able to perform the range of motion testing three times with no additional limitation of motion. As regards functional impairment, pain on movement and less movement than normal range of motion were assessed. There was tenderness and pain on palpation for the left knee, and there was no noted instability in the joint. Specifically, the examiner found that the knee was normal with respect to posterior and medial-lateral instability testing. Patellar subluxation and dislocation was specifically noted to not be present, and there was no additional tibial or fibula impairment. The Veteran was found to exhibit frequent locking of the knee, and frequent joint pain was present. There was a meniscal tear in the joint, and the Veteran was noted to not have had any type of surgical procedure to correct the left knee pathologies. No scars were associated with his left knee, and the only ambulatory device noted was occasional usage of a brace. Magnetic resonance imaging (MRI) testing was included, and joint effusion was noted. The Veteran was also noted to have arthritis documented by radiographic testing. With regard to work impairment, it was noted that there was some interference in the Veteran's ability to work. While the Veteran was employed full-time in railroad operations, it was noted that he could not tolerate extended periods of walking or climbing ladders. Based on the above, the Board concludes that the Veteran has not displayed knee lateral instability or recurrent subluxation, and thus a separate rating is not warranted under Code 5257. See 38 C.F.R. § 4.71a, Diagnostic Code 5257; VAOPGCPREC 23-97 and VAOPGCPREC 9-98. Also, in all afforded VA examinations, the Veteran has demonstrated normal extension testing with regard to his left knee, and thus a separate compensable rating based on limitation of extension is also not warranted under Code 5261. See 38 C.F.R. § 4.71a, Diagnostic Code 5261; VAOPGCPREC 9-04. No ankylosis has been documented, and the Veteran has been specifically found to not have any tibial or fibula impairment associated with his service-connected left knee degenerative changes. Accordingly, the regulatory criteria addressing those manifestations need not be considered. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261. Essentially, the Veteran experiences pain in his joint that produces some limitation of flexion, and he also experience frequent locking of the joint as due to his disability. Also, there is arthritis present which has been documented by radiographic findings. With regard to the regulatory criteria applicable to limitation of flexion, the Board notes that a 30 percent rating would require flexion limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Simply put, the Veteran has not experienced that level of disability, with his flexion, limited by pain, being limited to 110 degrees at its most severe finding. Such a finding, irrespective of other limitations, would not even amount to a compensable level under Code 5260, which requires limitation to 45 degrees before a 10 percent rating can be assigned. Id. As this is the case, a higher disability evaluation is not warranted under this regulatory provision. Furthermore, while arthritis is present, the maximum schedular rating under Code 5003 provides for a 20 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. As that is the Veteran's current rating, there is no way a higher evaluation can be assigned under this provision. Indeed, the Veteran's most prominent disabling feature is the frequent locking associated with his left knee arthritis. Code 5258 provides for a maximum schedular rating of 20 percent for dislocated cartilage with frequent episodes of "locking" and associated pain and effusion into the joint. See 38 C.F.R. § 4.71a, Diagnostic Code 5258. This diagnostic criteria perfectly describes the service-connected left knee, as there is a meniscal tear with associated pain and effusion. Frequent locking is, as mentioned above, noted, and the maximum 20 percent rating contemplates this level of severity. Simply put, the Veteran does not experience limitation of extension which would warrant a higher rating, and there is no additionally noted instability or limitation of extension. As such, with the maximum 20 percent rating for locking and cartilage tear already having been assigned, the Veteran's disability picture is not so severe as to warrant a higher disability rating, to include the assignment of separate ratings, on a schedular basis. Accordingly, the claim for an increase must be denied. The Board has considered functional impairment associated with repeated motion testing, and notes that the Veteran has demonstrated some limitation as due to pain; however, this is fully considered in the assigned rating. Further, the Veteran has not demonstrated weakness in the joint, fatigability, or any incoordination as a result of his service-connected knee disorder. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Regarding extraschedular entitlement, the Board notes that there is not sufficient evidence of record to refer the claim for such consideration by the Director of VA's Compensation Service. Indeed, while the Veteran must occasionally take time off from work due to pain experienced during flare-ups, he is able to maintain fulltime employment with only very minimal accommodations needed regarding standing and climbing. The 20 percent schedular rating fully contemplates the periodic intense pain necessitating narcotic treatment. That is to say, such a manifestation is not so unique as to take the disability picture outside of the norm (and hence, what is contemplated by the rating schedule), and as such, the currently assigned schedular rating is sufficient. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); see also Thun v. Peake, 22 Vet. App. 111 (2008). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim for a higher rating for his left knee disability. 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to a disability rating in excess of 20 percent for degenerative changes of the left knee is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs