Citation Nr: 1326892 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-14 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial rating in excess of 10 percent disabling for degenerative joint disease (DJD) of the right knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on various periods of active duty and active duty for training from September 1966 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified in a hearing before a Decision Review Officer (DRO) in December 2007. A copy of the hearing transcript is associated with the claims file. In October 2009, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC to issue a statement of the case, which was provided in May 2011. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). After reviewing the contentions and evidence of record, the Board finds that the issue on appeal is accurately stated as listed on the title page of this decision. In this regard, the Veteran perfected an appeal as to the effective date of the grant of service connection for a right knee disability. The Veteran and his representative repeatedly argued that the effective date should be the date of the initial claim. In a December 2007 rating decision (located in Virtual VA), the RO awarded an earlier effective date for the grant of service connection for a right knee disability the day after separation from service, November 27, 2005. As such, as the appeal for an earlier effective date has been fully granted, there remains no controversy; therefore, that issue is not in appellate status, and is not before the Board. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDING OF FACT For the entire rating period, the Veteran's right knee DJD was established by X-ray evidence of osteoarthritis of the right knee, and manifested pain that resulted in noncompensable limitation of motion; the right knee DJD has not manifested ankylosis, recurrent subluxation or lateral instability, dislocated or removal of semilunar cartilage, malunion or non-union of the tibia and fibula with loose motion requiring a brace, or genu recurvatum. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for right knee DJD are not met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim for service connection for a right knee disability prior to initial adjudication. A June 2007 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. Concerning an appeal for a higher initial rating, because the appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for right knee DJD, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); 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). With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records, including VA treatment reports, have been secured. The RO arranged for a VA examination in June 2007. This examination is adequate for rating purposes. The June 2007 VA examiner reviewed the Veteran's medical history and complaints, and made clinical observations and findings regarding the severity of the disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). To the extent that the Veteran's representative requests another VA examination of the service-connected right knee DJD, the Board notes that the Veteran's most recent VA examination is dated in June 2007. Here, however, the fact that a VA examination is six years old is not a valid basis, unto itself, to provide the Veteran with another VA examination of the service-connected right knee DJD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding a veteran is entitled to a new examination after a two-year period between the last VA examination and the veteran's contention that the pertinent disability had increased in severity). With respect to his appeal for an initial evaluation in excess of 10 percent for right knee DJD, the Veteran has never alleged that the right knee DJD has worsened since the last VA examination in June 2007 nor is there any other indication (either from the Veteran, his representative, or the treatment reports), suggesting that the record, as it stands, does not reflect the right knee disability's current level of severity. Indeed, as discussed in detail below, the Veteran's right knee DJD appears to have even improved since the June 2007 VA examination. Thus, another VA examination of the Veteran's service-connected right knee disability is not warranted. As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield, 444 F.3d at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). The Court has emphasized that when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disability should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 303. The Board has reviewed all of the evidence in the Veteran's claims file, to include VA treatment reports in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Right Knee DJD Initial Rating Analysis Service connection for right knee DJD was granted in an August 2007 rating decision that assigned a 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260, which gave rise to this appeal. In September 2007, the Veteran entered a notice of disagreement with the 10 percent initial rating assigned. A statement of the case was issued in May 2011 (pursuant to the October 2009 Board Remand). The Veteran entered a substantive appeal in May 2011. The Veteran's right knee DJD was service connected and initially evaluated by the RO at 10 percent disabling. The RO indicated the 10 percent rating was being granted under the criteria found at 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260, although the actual findings regarding limitation of flexion to 45 degrees to meet the criteria for a 10 percent rating under Diagnostic Code 5260 were not supported by the record. Diagnostic Code 5260 provides for ratings based on limitation of flexion of the leg. 38 C.F.R. §§ 4.71a. The assigned 10 percent initial disability rating is consistent with the 10 percent rating provided under Diagnostic Codes 5010-5003 for arthritis with painful motion that manifests to a noncompensable (less than 10 percent) degree, which the evidence in this case supports. Diagnostic Code 5010 represents arthritis due to trauma, substantiated by x-ray findings, which in turn is to be rated under Diagnostic Code 5003 as degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. §§ 4.71a. Hyphenated diagnostic codes are to be used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. In such cases, the additional code is shown after a hyphen. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating 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. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Notes (1) and (2). The Diagnostic Codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 and 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a. The Veteran contends that the initial 10 percent rating assigned for the right knee DJD is too low. See September 2007 Notice of Disagreement. Specifically, the Veteran has reported that he has pain in the right knee approximately two to three times per month when the left knee gives out. At a VA examination in June 2007, the Veteran complained of mild, intermittent, right knee pain that is worsened by walking long distances. The diagnosis was mild bilateral medial compartment chondrocalcinosis and degenerative changes of the right knee. Upon physical examination of the right knee, the Veteran had no assistive devices for walking, a normal gait, no instability, no weakness, no episodes of dislocation or subluxation, no locking episodes, no effusion, and no reports of flare-ups. He reported that he had pain and stiffness of the right knee and was able to stand more than one hour, but less than three hours, and was able to walk one to three miles. Right knee flexion was measured at 130 degrees with pain beginning at 125 degrees and ending at 120 degrees. Extension was measured at zero degrees with pain beginning at zero degrees and ending at 5 degrees. There was no additional loss of joint function or motion with use due to repeated testing. VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in). VA treatment reports indicate the Veteran's continued treatment of the right knee with complaints of pain, including upon ambulation. Specifically, an October 2010 VA treatment record indicated the Veteran's report that his knee is much better with Naproxin. Importantly, in January 2011, the Veteran complained of knee pain with ambulation but indicated that he was no longer on Naproxin, suggesting additional improvement. Crepitus, or popping, of the right knee was also noted on VA treatment reports. Here, the Veteran's right knee DJD has been variously diagnosed. They include osteoarthritis, mild bilateral medial compartment chondrocalcinosis, and degenerative changes of the right knee. Given the above, the Board finds that the most favorable diagnosis is the osteoarthritis under Diagnostic Code 5003 as opposed to Diagnostic Code 5260 under which the Veteran's right knee DJD was initially rated. Indeed, as discussed fully below, limitation of motion of the right knee would not result in a compensable evaluation under either Diagnostic Code 5260 or 5261 (diagnostic codes based upon limitation of motion). X-ray evidence from June 2007 and October 2010 objectively confirmed osteoarthritis of the right knee and, with considerations of noncompensable limitation of motion due to the limiting factor of pain, a 10 percent rating is warranted under Diagnostic Code 5010-5003. The Veteran's right knee DJD does not result in compensable limitation of motion (explicitly indicated in the June 2007 VA examination report) for any period, either limitation of flexion or extension. Based on the above, the evidence of record does not establish that the Veteran's right knee DJD warrants an evaluation in excess of 10 percent disabling for any period on appeal. The Board has considered application of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, supra for the entire appeal period, specifically the additional limitations of motion due to pain, in reaching its finding that the Veteran has limitation of motion to a noncompensable degree. Although the June 2007 VA examination contained reports that the Veteran experienced pain, such findings do not provide for a higher disability rating than 10 percent in this case. Indeed, the DeLuca factors go to additional loss of function caused by limitation of motion due to pain. Even with pain, the limitation of motion is only to a noncompensable degree. While the June 2007 examination report indicated pain upon motion, even considering the additional motion limitation, the degree of impairment would not warrant a higher evaluation based on limitation of motion. During the entire appeal period, the limitation of motion did not reveal extension limited to 15 degrees or more, or flexion limited to 30 degrees or less for a 20 percent evaluation, even with consideration of the additional limitation due to pain. The evidence also does not show both compensable limitation of motion of extension (10 degrees) or limitation of motion of flexion (45 degrees) to warrant separate compensable ratings for both limitation of extension and limitation of flexion. See VAOPGCPREC 09-04 (separate ratings may be awarded for compensable limitation of flexion and limitation of extension of the same knee joint). The Board has additionally considered other Diagnostic Codes to provide the Veteran with the most beneficial disability rating for his right knee DJD. See Schafrath, 1 Vet. App. at 595. In this regard, as noted above, the Veteran had near full range of motion during the appeal period even with consideration of pain (i.e., no limitation of motion warranting even 10 percent under limitation of motion diagnostic codes 5260 or 5261); therefore, a higher initial disability rating in excess of 10 percent is not warranted under Diagnostic Codes 5260 or 5261 for limitation of flexion and extension. 38 C.F.R. § 4.71a. Also, as there is no lay or medical evidence of ankylosis, recurrent subluxation or lateral instability, semilunar, dislocated cartilage with frequent episodes of "locking," pain, and effusion into the joint, impairment of the tibia and fibula by malunion or nonunion, genu recurvatum, or history of removal of semilunar cartilage, the criteria of Diagnostic Codes 5256, 5257, 5258, 5259, 5262 and 5263 do not apply. 38 C.F.R. § 4.71a (2012). For these reasons, the Board finds that the preponderance of the evidence weighs against the assignment of an initial evaluation in excess of 10 percent disabling for a right knee disability for the entire rating period. In this case, the Board does not find that the initial rating assigned should be higher for any other separate period based on the facts found during the appeal period. As a result, no staged rating is warranted. 38 C.F.R. §§ 4.3, 4.7; see Fenderson, 12 Vet. App. at 126. Extraschedular Consideration The Board has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that the symptomatology and impairment caused by the Veteran's right knee DJD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Codes 5003, 5010, 5256-5263, specifically provide for disability ratings based on arthritis and limitation of motion that is noncompensable, including limitation of motion due to pain and other limiting factors. See 38 C.F.R. §§ 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263; see also DeLuca at 202. In this case, considering the lay and medical evidence, right knee DJD has been manifested by pain, including upon ambulation, and arthritis; these findings and symptoms are contemplated by the schedular rating criteria. The Board has additionally considered ratings under alternate schedular rating criteria as discussed above. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). The Board further considered the Veteran's functional limitations of crepitus, or popping, of the right knee upon flexion and extension related to arthritis, and limitations in ambulation related to limitation of motion. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] 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. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect of the Veteran's symptoms while walking and standing, on his occupation and daily life. In the absence of exceptional factors associated with a right knee disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Moreover, the Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was reasonably raised by the record in this case. Neither the Veteran nor the evidence suggests unemployability due to service-connected disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is service connected for a back disability, tendonitis of the left elbow, right and left knee disabilities, hearing loss, tinnitus, and hypertension. Indeed, the June 2007 VA examination report indicated that the Veteran's right knee DJD had no significant impact on occupation; therefore, as the issue of individual unemployability due to service-connected disabilities is not reasonably raised by the record, it is not part of the rating appeal. ORDER An initial rating in excess of 10 percent disabling for a right knee DJD is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs