Citation Nr: 1325613 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 09-09 465 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to an evaluation in excess of 10 percent for status post medial meniscectomy with patellofemoral osteoarthritis of the right knee. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from April 1980 to February 1985. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2007 decision by the RO which denied the benefits sought on appeal. A videoconference hearing before the undersigned was held in August 2012. The Board remanded the appeal for additional development in January 2013. FINDING OF FACT The Veteran's right knee disability is manifested by pain, swelling and decreased range of motion, without instability or subluxation; functional limitation due to pain, weakness, incoordination, fatigability, repetitive use or during flare-ups commensurate with the criteria for a higher evaluation based on limitation of motion or instability is not demonstrated. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 10 percent for status post medial meniscectomy with patellofemoral osteoarthritis of the right knee are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.20, 4.40-4.46, 4.59, 4.71a, Diagnostic Codes 5010-5260 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in May 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. The Veteran's service treatment records (STRs) and all VA and private medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's VA electronic medical records. The Veteran was examined by VA three times during the pendency of this appeal and testified at a videoconference hearing before the undersigned in August 2012. A transcript of the videoconference hearing is of record. The Board finds that the VA examinations, particularly the March 2013, were comprehensive in scope, included a discussion and analysis of the Veteran's medical history and current findings, and are adequate to render a fair and impartial determination on the merits of the issue on appeal. As noted above, the Veteran testified a videoconference hearing before the undersigned in which he presented oral arguments in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the hearing, the VLJ fully identified the issues on appeal, indicated the evidence necessary to substantiate the claims, and asked specific questions directed at identifying the location of any potentially outstanding medical evidence. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the undersigned has complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Finally, the case has been subject to a prior Board remand. The AMC completed all of the requested actions, including a VA examination to determine the severity of the Veteran's service-connected right knee disability, and associated all available VA treatment records with the claims folder. Under the circumstances, the Board finds that the AMC has substantially complied with the January 2013 remand orders and that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Increased Rating - In General In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 enervation, or other pathology, or it 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 seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. Right Knee Disability The Veteran contends that his service-connected right knee disability is more severe than is reflected in the 10 percent evaluation currently assigned, and believes that a higher evaluation is warranted. The Veteran reports chronic pain and weakness in the right knee and has trouble walking any distance without the knee buckling and giving way. Initially, it should be noted that the Board has reviewed all the evidence of record, including the Veteran's STRs and VA examinations and treatment records, and has considered the Veteran's testimony at the videoconference hearing in August 2012. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, it is not required to discuss each and every piece of evidence in a case. The Veteran's complaints and the clinical and diagnostic findings on the three VA examinations conducted during the pendency of this appeal have been essentially the same throughout, manifested principally by chronic pain and limitation of motion. The record also shows that the Veteran has additional disability of the cervical spine unrelated to his right knee disability with symptoms that affect functional use of his lower extremities. Further discussion of the additional disability and its effect on the Veteran's right lower extremity will be addressed later in this decision. As noted above, the Veteran was examined by VA three times during the pendency of this appeal, including in June 2007 and 2010, and March 2013. Of the three examinations, the Board finds that the most recent examination in March 2013, was most persuasive, as it included a detailed description of the Veteran's complete medical history, and a comprehensive analysis of the findings associated with the service-connected right knee disability. Unlike the two prior VA examinations, the examiner had an opportunity to review the Veteran's entire medical record and claims file. When examined by VA in June 2007, the examiner indicated that the claims file was not available for review. The Veteran complained of increasing neuropathy in all four extremities with loss of functioning in his hands and feet. He ambulated with use of a walker at all times, and used braces on both legs due to his inability to fully support his weight. The examiner indicated that the Veteran wore a brace on the right leg due to weakness and instability of the right knee. Forward flexion was from zero to 110 degrees with pain and the end range of motion. The Veteran had limited varus or valgus testing due to the brace and had no significant medial or lateral joint line tenderness. Anterior Drawer sign was negative, motor strength was 3+/5 in all muscles of the right leg, and patellar compression testing was positive. The examiner indicated that the Veteran's range of motion was limited by pain and weakness due to his inability to fully flex or extend the right leg without the aid of a brace, but that range of motion was not limited by fatigability, incoordination or lack of endurance on repetitive motion or during flare-ups. X-ray studies showed evidence of tricompartmental degenerative joint disease with joint space narrowing and significant osteophyte formation. The diagnoses include aggressive polyneuropathy of all four extremities and severe tricompartmental right knee degenerative joint disease. When examined by VA in June 2010, the examiner indicated that the claims file and medical records were not available for review. The Veteran complained of chronic pain, stiffness, weakness, and decreased motion in the right knee and was unable to stand for more than a few minutes or walk more than a few yards without assistance. On examination, there was no evidence of deformity, giving way, instability, incoordination, episodes of dislocation or subluxation, locking, effusion or inflammation. There was no crepitus, clicks, snaps, instability or patellar abnormality. Extension was limited by 5 degrees and flexion was to 55 degrees. X-ray studies revealed moderate degenerative joint disease of the right knee. In January 2013, the Board remanded the appeal for a comprehensive VA examination to determined the current severity of the Veteran's service-connected right knee disability. When examined by VA in March 2013, the examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints, medical history and the findings on examination. The Veteran complained of cracking, popping, swelling and limitation of motion in the right knee, but denied any flare-ups. On examination, forward flexion was to 70 degrees with pain at the end range of motion. Extension was to zero degrees without pain. There was no additional loss of motion on repetitive movement. There was some tenderness and pain to palpation of the right knee joint, and muscle strength was 4/5 on flexion and normal on extension. There was no evidence of anterior, posterior or mid-lateral instability and no patellar subluxation/dislocation. The surgical (meniscectomy) scar was not painful or unstable and was not greater than 39 sq. cm. The examiner indicated that the Veteran's right quadriceps muscles were weaker than the left, and that he had additional spinal cord disability secondary to cervical spinal stenosis contributing to weakness both lower extremities. He also noted that the Veteran required use of a wheelchair due to tetraplegia secondary to the cervical spine disability, and that he had additional weakness in the left knee due to a joint condition in that knee. The examiner indicated that the Veteran's right knee would preclude activities that required kneeling, prolonged standing or walking, but that his primary disability was secondary to his cervical spine disability and not the service-connected right knee disability. The examiner noted that x-ray studies and MRI's of the Veteran's knees were very similar and consistent with similar mechanical stresses on both knees indicative of a normal gait. The Veteran's weakness in the lower extremities was due primarily to chronic cervical myelopathy with tetraplegia, as well as his diabetic condition, which was uncontrolled for many years, and his history of substance abuse. The examiner indicated that the Veteran's reported history of symptoms since 2004, along with the diagnostic tests, neurologic and treatment records did not support a worsening of his right knee meniscal disability as the cause of his current bilateral lower extremity problems. The Veteran's chronic effusion in the right knee was consistent with osteoarthritis and was related to the right knee disability, but that the diagnostic studies did not support a finding of recurrent subluxation or lateral instability in the knee. The examiner commented that the MRIs indicated a degenerative condition involving the meniscus and not a dislocated semilunar cartilage disorder, and opined that the instability that the Veteran was experiencing in his lower extremities was secondary to his tetraplegia disability. There was no ankylosis, or tibia or fibula impairment in the right knee. The evidentiary record also includes several letters from a VA physician who has treated the Veteran for several years. The letters were to the effect that the Veteran's knee condition had progressively worsened over the years and has affected his ability to ambulate. While the Board has considered the physician's statements, the letters did not provide any specific information, such as range of motion findings or functional impairment estimates and, therefore, is of limited probative value. Furthermore, the physician made no mention of the Veteran's cervical spine disability which, as will be discussed later in the decision, is the primary cause of the Veteran's weakness and instability in his lower extremities and his need to use leg braces and a wheelchair. Under the circumstances, the Board declines to assign any significant evidentiary weight to this evidence. The Veteran's right knee disability is rated 10 percent disabling under Diagnostic Codes (DC) 5010-5260 for traumatic arthritis with limitation of motion to a noncompensable degree. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. DC 5010 provides that arthritis due to trauma, substantiated by x-ray findings, is to be rated under degenerative arthritis (DC 5003). Under DC 5003, 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 (Diagnostic Code 5200 etc.). 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 or group of minor joints 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. 38 C.F.R. § 4.71a, (2012). Under DC 5260, limitation of flexion of a knee warrants a noncompensable evaluation if flexion is limited to 60 degrees, a 10 percent evaluation if flexion is limited to 45 degrees, a 20 percent evaluation if flexion is limited to 30 degrees and a 30 percent evaluation if flexion is limited to 15 degrees. 38 C.F.R. § 4.71, DC 5260. Under DC 5261, limitation of extension of a leg warrants a noncompensable evaluation if extension is limited to 5 degrees, a 10 percent evaluation if extension is limited to 10 degrees, a 20 percent evaluation if extension is limited to 15 degrees, a 30 percent evaluation if extension is limited to 20 degrees, a 40 percent evaluation if extension is limited to 30 degrees, and a 50 percent evaluation if extension is limited to 45 degrees. 38 C.F.R. § 4.71, DC 5261. The normal range of motion for a knee joint is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. In this case, the clinical and diagnostic findings from the medical reports of record showed no limitation of motion or impairment in the right knee to the degree required for the assignment of an evaluation in excess of 10 percent under any of the applicable rating codes. As noted above, an evaluation in excess of 10 percent for knee impairment under DC 5260 or 5261 based on limitation of motion requires flexion limited to 30 degrees or less, or extension to 15 degrees or more. Here, the Veteran had no limitation of flexion to less than 55 degrees, or extension to greater than 5 degrees. Additionally, there was no objective evidence of instability, subluxation, locking, abnormal motion or guarding. Thus, a higher evaluation based on limitation of motion under the above cited rating codes is not warranted. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Other potentially applicable rating codes which may provide a basis for assigning a higher evaluation include DC 5256, which requires ankylosis of the knee joint. Under DC 5257, a 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability. However, none of these codes are applicable based on the facts of this case. The clinical findings on all of the medical reports of record during the pendency of this appeal showed no evidence of instability, subluxation, locking, or ankylosis. Therefore, a higher evaluation under any of these rating codes is not possible. The Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the Board has considered the Veteran's assertions that he has chronic pain and uses a knee brace and wheelchair to ambulate. However, the objective findings on the VA examinations and medical reports did not show any instability or subluxation and no more than moderate limitation of flexion. The Veteran's weakness in his lower extremities and use of assistive devices to ambulate are due to an unrelated cervical spinal cord disability and tetraplegia. Furthermore, the VA examiners in 2007 and 2012 indicated, specifically, that there was no additional limitation of motion due to pain, weakness, incoordination, fatigue or on repetitive movement (the VA examiner in June 2010 did not offer an opinion of functional impairment). Thus, there is no competent evidence of record to support the assignment of a rating in excess of 10 percent based on additional functional loss of use. The Board recognizes that the Veteran has pain in his right knee on a daily basis which impacts on his ability to engage in some activities. However, "a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40." Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Here, there was no objective evidence of any additional functional loss of use due to pain or on repetitive use. Therefore, the Board finds that the level of functional impairment is adequately compensated by the 10 percent evaluation currently assigned. The percentage ratings in VA's Schedule for Rating Disabilities represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. As there is no objective evidence of any additional functional loss of use due to pain or on flare-ups, the Board finds that 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not provide a basis for a higher rating. Applying the appropriate Diagnostic Codes to the facts of this case, the objective assessment of the Veteran's impairment from his service-connected right knee disability do not show that he had sufficient symptoms so as to a warrant an evaluation in excess of 10 percent at any time during the pendency of this appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the manifestations of the Veteran's right knee disability are consistent with the schedular criteria, and there is no objective or competent medical evidence that any manifestation related to the service-connected disability is unusual or exceptional. The schedular rating criteria adequately contemplate the degree of impairment caused by his right knee disability, and provides for a higher rating with more severe symptoms or clinical findings. In view of this, referral of this case for extraschedular consideration is not in order. Finally, the Board notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. In fact, at the videoconference hearing in August 2012, the Veteran did not allege that he was unable to work because of his right knee disability and testified that he was unemployed due to nonservice-connected disabilities. In any event, the objective findings of record do not show or otherwise suggest that his service-connected right knee disability would preclude substantially gainful employment. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the Veteran's claim. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An increased rating for status post medial meniscectomy with patellofemoral osteoarthritis of the right knee is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs