Citation Nr: 1324398 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-12 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a higher initial disability rating for a right knee disorder, evaluated during the appeal period as 10 percent disabling. REPRESENTATION Appellant (Veteran) represented by: The American Legion ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from July 2004 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in February 2007 and January 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Of note, the Veteran initiated her claim in April 2009 by submitting a "notice of disagreement" or NOD with a February 2007 rating decision, which was in response to a July 2006 original claim for service connection. Procedurally, this correspondence should have been treated as a new claim for an increased rating, rather than a NOD with the initial rating established, as it was untimely as to the 2007 decision. See 38 C.F.R. § 20.302 (to be timely, a notice of disagreement must be filed within one year from the date that the agency mails notice of the determination to the claimant). However, the RO treated the correspondence as a NOD, and issued the subsequent rating decision in January 2010. The Veteran filed a timely NOD with that decision, and ultimately perfected the instant appeal. In May 2013, the Board reviewed the merits and found that a remand was warranted. While a technical reading of the record would indicate that the appeal began with the April 2009 correspondence, as opposed to the original claim in July 2006, the Board acknowledges that the RO has treated the claim as being on appeal from the initial February 2007 rating decision, and further that the Board also treated it as such in its May 2013 remand. Therefore, the Board acknowledges taking jurisdiction from the original rating. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (if VA treats the appeal as timely, then VA has waived any objection that VA might have had to the timeliness of the submission). The Board notes that it has reviewed the Veteran's claims file, to include documents of record that have been included in his virtual VA folder. No relevant evidence has been added to the claims file by the RO since the supplemental statement of the case (SSOC) dated in May 2013. 38 C.F.R. §§ 19.31, 20.1304(c) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence of record indicates that, during the appeal period, the Veteran's right knee has had range of motion from zero degrees to between 100 and 140 degrees; has been stable without subluxation or instability; has not had cartilage removal, dislocation, locking, or effusion; has not caused genu recurvatum or tibia and fibula disorders; and has not been disabled by ankylosis or arthritis. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the Veteran's service-connected right knee disability, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5024, 5256-5263 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA must provide notice and assistance to claimants for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Proper notice applies to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant case, there can be no prejudice to the Veteran from any alleged failure to give adequate notice because this case concerns an initial rating and effective date that comes before the Board on appeal from the February 2007 decision which also granted service connection. Courts have held that once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises from receipt of a notice of disagreement). Therefore, no further notice is needed under VCAA for this claim. The Board nevertheless notes that VA did provide the Veteran with a notification letter in August 2006 which informed the Veteran of the evidence and information necessary to substantiate a claim for service connection, and which informed the Veteran regarding her and VA's respective responsibilities in obtaining evidence and information. In accordance with Dingess/Hartman, the letter also informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date. Moreover, the Veteran was provided with full notification prior to the February 2007 rating decision that decided her claim to service connection, and awarded the initial rating she has appealed. Mayfield v. Nicholson, 19 Vet.App. 103 (2005). In sum, VA has satisfied its duty to notify. With regard to VA's duty to assist, the record indicates that the RO requested from the Veteran information regarding medical evidence pertaining to her claim for a higher rating. The record shows that the RO included in the claims file relevant private and VA treatment records and reports. The Veteran underwent VA compensation examinations into her claim in October 2009 and May 2013. Reports of the examinations are of record. In the reports, the VA examiners detailed the nature and severity of the Veteran's right knee disability, and entered findings based on the Veteran's lay statements, on the evidence of record, and on the examination of the Veteran. The findings are supported by data and reasoned explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). When considered together, along with the detailed private and VA treatment records in the claims file, the VA examination reports are sufficient to enable the Board in deciding the Veteran's claim for a higher rating. In sum, the Board finds that VA's duties to notify and assist have been substantially met. Any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of her claim for a higher initial rating. Higher Initial Rating The Veteran was discharged from active service on December 13, 2005. On July 21, 2006, the RO received the Veteran's original claim to service connection for a right knee disorder. In February 2007, the RO granted service connection and assigned a 0 percent disability rating effective December 14, 2005. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In February 2010, the Veteran appealed to the Board the assigned disability rating. During the pendency of the appeal, the RO assigned a 10 percent rating effective July 21, 2006. Later, the RO applied the 10 percent rating effective December 14, 2005. Thus, the Veteran has been rated as 10 percent disabled since her discharge from active service. The Veteran continues to maintain entitlement to a higher rating during the appeal period. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (an appellant is presumed to be seeking the maximum available benefit even where an increase is granted during the appeal period). As such, the Board will consider whether a higher initial rating has been warranted at any time since December 14, 2005. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (where the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time). The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide reasons and bases supporting the decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether evidence supports a claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disabilities of the knee are rated under Diagnostic Code (DC) 5256 through DC 5263 of 38 C.F.R. § 4.71a (2012). Diagnostic Code 5256 addresses ankylosis of the knee. Diagnostic Code 5257 addresses recurrent subluxation or lateral instability. Diagnostic Code 5258 addresses dislocated cartilage in the knee manifested by frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 addresses the surgical removal of semilunar cartilage. Diagnostic Codes 5260 and 5261 address limitation of motion in the leg. Diagnostic Code 5262 addresses impairment of the tibia and fibula. Diagnostic Code 5263 addresses genu recurvatum. The Board also notes the relevance here of DCs 5003, 5010, and 5024 of 38 C.F.R. § 4.71a. Traumatic arthritis is recognized under DC 5010 and is rated under DC 5003 on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved (i.e., the knee under DCs 5256 to 5263). When there is some limitation of motion, but which is noncompensable under a limitation-of-motion code, a 10 percent rating may be assigned with involvement of a major joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). Under DC 5024, which the RO relied on in rating the Veteran 10 percent disabled for her right knee disorder, tenosynovitis is to be rated on limitation of motion of the affected part (i.e., the knee under DCs 5256 to 5263). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. The relevant medical evidence of record consists of VA and private treatment records, VA compensation examination reports dated in October 2009 and May 2013, and lay statements from the Veteran. The October 2009 VA examiner indicated a review of the claims file. The examiner noted the Veteran's complaints of pain, limitation, locking, instability, weakness, and stiffness. On examination of the right knee, the examiner found tenderness due to meniscal tear and sprain, but found no arthritis, ankylosis, clicks, snaps, grinding, instability, patellar abnormality, locking, effusion, or dislocation. The examiner noted range of motion between 0 degrees extension and 130 degrees flexion (out of a normal 140 degrees). While the examiner noted objective evidence of pain on motion, he found no additional limitation following repetitive motion. The examiner noted that the Veteran had not undergone surgery on her right knee, and noted that the Veteran had a normal gait. The examiner further noted that a July 2008 VA x-ray indicated a normal right knee. The examiner concluded that symptoms associated with the right knee disorder would impact her occupational activities, but also noted that, due to pregnancy, the Veteran was then unemployed. The May 2013 VA examiner indicated a review of the claims file. He reported the Veteran's complaints of constant right knee pain which is worsened by walking, weight bearing, and climbing stairs. The Veteran reported 3-5 flare ups per week with "flexion of leg decreased to 30 degrees." She indicated occasional use of a knee brace. On examination, the examiner noted 0 degrees extension without pain and 140 degrees flexion, with pain reported at 130 degrees flexion. The examiner noted repetitive use without any additional range of motion limitations, but did state that repetitive testing elicited pain at 100 degrees flexion. The examiner noted normal muscle strength, a stable knee joint, and no associated tibial or fibula problems. The examiner noted November 2010 magnetic resonance imaging which showed a slight flattening of the patellar facet and a narrow femoral groove. He also noted a May 2013 x-ray which showed no acute fracture or dislocation, with joint spaces intact. The examiner diagnosed the Veteran with tendon inflammation in the right knee which caused tenderness on palpation, and stated that the symptoms would impact her ability to work. The examiner indicated that the Veteran's pain would increase from walking, climbing stairs, bending, squatting, kneeling, and weight bearing, and that the repetitive use would "likely" lead to the loss of 20-30 degrees flexion over time. The examiner stated that "[s]edentary work is not impacted." The Board has also reviewed VA treatment records dated between April 2006 and February 2013. These records note the Veteran's knee pain and limitation and, in June 2010, note impressions of chondromalacia involving the patellofemoral joint. But the findings related to treatment between April 2006 and February 2013 do not differ significantly from those noted by the two VA examiners, particularly with regard to the relevant criteria used in rating the Veteran's disorder (i.e., the criteria in DC 5257 through DC 5261). Indeed the VA treatment records include radiographic reports. July 2008 and January 2010 VA x-ray reports note no abnormalities as did the November 2010 VA MRI report noted by the May 2013 VA examiner (intact medial and lateral menisci, no significant joint effusion, normal anterior and posterior cruciate ligaments, intact medial and lateral collateral ligament complexes, normal cartilage in all three compartments of the knee joint, and normal patellar and quadriceps tendons). Further, the MRI report did not indicate subluxation, but did state that the Veteran's patellofemoral anatomy was conducive to subluxation. The private medical evidence of record - dated in May 2006 - is also consistent with the VA examiner's findings in noting tenderness associated with a meniscal disorder, and in finding a stable knee joint with no bony abnormalities. Moreover, May 2006 private MRI indicated an unremarkable right knee except for thick "chondral cartilage of the patella." The Board has also reviewed lay statements of record from the Veteran asserting pain and limitation associated with the knee disorder. The Board finds these statements of probative value because pain and limitation associated with a knee injury are observable symptoms about which the Veteran is competent to offer evidence. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ["a legal concept determining whether testimony may be heard and considered"] and credibility ["a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"]). Based on the preponderance of the evidence of record, however, the Board finds that an initial rating higher than 10 percent is unwarranted during the appeal period (i.e., since December 2005). The evidence of record indicates no arthritis (DCs 5003, 5010), no ankylosis (DC 5256), no subluxation or lateral instability (DC 5257), no dislocated or removal of cartilage (DCs 5258, 5259), no genu recurvatum (DC 5262), and no tibia or fibula disorders (DC 5263). A rating in excess of 10 percent is also unwarranted for limitation of motion under either DC 5260 or DC 5261. To award a rating in excess of 10 percent for limitation of flexion under DC 5260, the evidence must indicate flexion limited to 30 degrees or less. The medical evidence indicates flexion of 130 to 140 degrees with some pain manifestation at 100 degrees flexion. As this amount of pain-free motion far exceeds 30 degrees, a rating higher than 10 percent is unwarranted. To award a rating in excess of 10 percent for limitation of extension under DC 5261, the evidence must indicate extension limited to 15 degrees or more. The medical evidence indicates pain-free extension of 0 degrees. As this amount of pain-free extension is far less than 15 degrees, a rating higher than 10 percent is unwarranted under DC 5261. See Deluca, supra. In assessing whether the Veteran has limitation that would warrant a higher rating, the Board has reviewed the Veteran's lay assertion, reported in the May 2013 VA report, that she had "flexion of leg decreased to 30 degrees." Again the Veteran is competent to comment on pain and limitation. However, her comment regarding the exact degree of her right knee flexion is of limited probative value. First, her range of motion measurements are determined by medical evaluation using a goniometer. This is a medical rather than a lay matter. Second, her claim to limitation of flexion is directly contradicted by the physician who examined her the same day, who found full flexion on initial testing, and noncompensable flexion limited to 100 degrees by pain after repetitive testing. The examiner's findings of a stable knee joint and normal bilateral muscle strength in the lower extremities tend to support his medical findings, moreover. 38 C.F.R. § 4.71a, DC 5260; Deluca, supra. Hence, the medical findings regarding the essentially medical matter of measuring the range of motion of a disabled knee joint preponderate against the Veteran's lay assertion to being limited to 30 degrees flexion. Extraschedular Consideration The Board must consider whether the Veteran is entitled to an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability 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, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the disability picture presented by the Veteran's right knee disability is appropriately contemplated by the rating schedule. Specifically, the Veteran has tenderness, pain, and noncompensable limitation in the right knee. Those symptoms are directly contemplated by the schedular criteria. As indicated in the analysis above, were the record to indicate worse symptoms for the disorder, then the rating schedule would warrant a higher rating. Although the evidence in this matter indicates that the Veteran's disability impacts her ability to do some work, the Board notes that the schedule was created to compensate for a decrease in occupational ability due to service-connected disabilities. Thus, the Board finds that to the extent that the Veteran's knee disorder affects her ability to work, it is already contemplated by the 10 percent rating assigned since December 2005. In short, as the Veteran's symptoms are contemplated by the schedule, referral for consideration of an extraschedular evaluation is not warranted here. Thun. As a final matter, the Board acknowledges that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability evaluation based on individual unemployability (TDIU) will be considered to have been raised by the record as "part and parcel" of the underlying claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, however, while evidence of an impact on the Veteran's work has been shown as discussed above, there is no evidence of unemployability due to this, or other service-connected disabilities. Therefore, the issue of TDIU has not been raised by the record. In sum, the Board finds that a preponderance of the evidence is against the assignment of a rating in excess of 10 percent for a right knee disability; therefore, the benefit-of-the-doubt rule does not apply, and the Veteran's claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. ORDER Entitlement to an initial rating in excess of 10 percent for a right knee disability is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs