Citation Nr: 1328277 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-18 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from May 1981 to March 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision drafted by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted the Veteran's claim for service connection for degenerative joint disease of the right knee and assigned a 10 percent rating effective as of January 22, 2008-the date of the Veteran's claim. The Veteran was scheduled to present testimony at the Board's Central Office in Washington, DC, before a Veterans Law Judge in July 2013. However, the Veteran failed to report to the hearing. As the record does not contain further explanation as to why the Veteran failed to report to the hearing, or a request to reschedule the hearing, the Board deems the Veteran's request for such a hearing to be withdrawn. FINDING OF FACT The Veteran's degenerative joint disease of the right knee has been productive of pain with extension to 0 degrees and flexion to no less than 90 degrees including on repetition, without clinical evidence of ankylosis, recurrent subluxation or lateral instability, dislocated or removed semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a Diagnostic Code (DC) 5010-5260 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist This claim arises from a disagreement with the initial disability rating that was assigned following the grant of service connection. Courts have held that once service connection is granted 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). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues, including VA treatment records and examination reports, has been obtained. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). The Board finds that the March 2008 and August 2012 VA examination reports are adequate because the examiners discussed the Veteran's medical history, described the service-connected right knee disability in sufficient detail, and supported all conclusions with analysis and, where possible, objective test results. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. Thus, the Board finds that VA made reasonable efforts to satisfy its duty assist and to obtain evidence necessary to substantiate the Veteran's claim. No further assistance to develop evidence is required. Analysis The Veteran contends that his right knee disability warrants a higher initial rating. In his October 2008 notice of disagreement, the Veteran asserted that his right knee degenerative joint disease is moderate in severity, and that this warrants a 20 percent disability rating. As evidence, the Veteran included documentation of May 2008 VA x-rays of his right knee, which a VA radiologist interpreted as showing "Moderate tricompartmental degenerative arthritis. Right knee otherwise negative." A copy of this document also exists in the Veteran's VA treatment records obtained from the Hampton, Virginia, VA Medical Center; its veracity is undisputed. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The RO has evaluated the Veteran's degenerative joint disease of the right knee at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5010, as of January 22, 2008- the date of the Veteran's claim. Under 38 C.F.R. § 4.71a, there are several diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected knee disorders. Diagnostic Codes (DCs) 5003 and 5010, for evaluation of degenerative and traumatic arthritic changes, are applicable to the knee. 38 C.F.R. § 4.71a, DCs 5003, 5010. Diagnostic Code (DC) 5010 applies to traumatic arthritis and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, DC 5003. Diagnostic Code 5003 provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate diagnostic code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of compensable limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations. Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight; a 20 percent evaluation if it is moderate; or, a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, DC 5257. Limitation of flexion of a leg warrants a noncompensable evaluation when flexion is limited to 60 degrees. A 10 percent evaluation is appropriate if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of a leg is noncompensable when extension is limited to 5 degrees. A 10 percent evaluation is warranted with extension limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. A rating of 20 percent applies where there is malunion of the tibia and fibula with moderate knee or ankle disability. A rating of 30 percent applies where there is malunion of the tibia and fibula with marked knee or ankle disability. A rating of 40 percent applies where there is nonunion of the tibia and fibula, with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262. Additional rating criteria are found under DCs 5256 (ankylosis of the knee), DC 5258 (which provides for a 20 percent rating for dislocated, semilunar cartilage with frequent episodes of locking, pain and effusion into the joint), and 5259 (which provides for a 10 percent rating for symptomatic removal of the semilunar cartilage). VA's General Counsel has clarified that for a knee disability rated under DC 5257 or DC 5259 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable, but must at least meet the criteria for a zero-percent rating under those codes. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59 and DC 5003. VAOPGCPREC 9-98 (1998). VA's General Counsel has more recently held that separate ratings are also available for limitation of flexion and limitation of extension under DCs 5260 and 5261. VAOPGCPREC 9-2004 (2004). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The knee is considered a major joint. 38 C.F.R. § 4.45(f) (2012). At his March 2008 VA examination, the Veteran reported experiencing pain in his right medial knee when running, jumping, carrying over 20 pounds, bending, lifting, and climbing stairs. The VA examiner found that the Veteran had right knee flexion to 90 degrees, with pain at 115 degrees- suggesting that the values were transposed. The Veteran had right knee extension to 0 degrees. The examiner found that joint function was additionally limited by pain and lack of endurance on repetitive use, but that they additionally limited the joint function by 0 degrees. The examiner further found that the Veteran had no subluxation, and that testing of the stability of the ligaments of his right knee was within normal limits. The VA examiner diagnosed the Veteran with right knee and patella degenerative joint disease. He found that the Veteran is able to do activities of daily living (ADLs). At his August 2012 VA examination, the Veteran reported missing three or four days of work two years ago due to a flare-up of his right knee symptoms. The VA examiner found that the Veteran had right knee flexion to 130 degrees, including after repetitive use testing, with pain at 130 degrees. The Veteran had right knee extension to 0 degrees, including after repetitive use testing, with no objective evidence of painful motion. The examiner further found that the Veteran had no subluxation or lateral instability, and no meniscal (semilunar cartilage) conditions or surgical procedures for a meniscal condition. The VA examiner diagnosed the Veteran with degenerative joint disease of the right knee. She found that the Veteran's knee condition does not impact his ability to work. After reviewing all of the clinical evidence and subjective complaints since the effective date of service connection, the Board finds that the preponderance of the evidence shows that an initial disability evaluation in excess of 10 percent for the Veteran's degenerative joint disease of the right knee is not warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5260. At its most limited, the Veteran's right knee had extension to 0 degrees and flexion to no less than 90 degrees including on repetition. VA examiners expressly found no subluxation or lateral instability of the Veteran's right knee. Additionally, the August 2012 VA examiner found no dislocated or removed semilunar cartilage. There is no lay or medical evidence to support findings of either nonunion or malunion of the tibia and fibula, or genu recurvatum. Range of motion and other pertinent test results preclude any finding of ankylosis of the right knee. The findings of record do not show x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Consequently, a disability rating in excess of 10 percent for the Veteran's right knee disability is not warranted. The Board has carefully considered the Veteran's contentions, including his October 2008 notice of disagreement in which he asserted that his right knee degenerative joint disease warrants a 20 percent disability rating based on a May 2008 VA radiologist's finding of "Moderate tricompartmental degenerative arthritis. Right knee otherwise negative." The Veteran appears to have conflated two distinct rating codes pertaining to the knee- DC 5010, which pertains to arthritis, and DC 5257, which pertains to other impairments of the knee including recurrent subluxation or lateral instability. The May 2008 VA radiologist found that the Veteran had moderate tricompartmental degenerative arthritis-this finding qualifies the Veteran for a rating under DC 5010. However, the Veteran appears to have read the word "Moderate" as qualifying him for a 20 percent rating under DC 5257, in which moderate recurrent subluxation or lateral instability warrants a 20 percent rating. However, both the March 2008 and August 2012 VA examiners expressly found no subluxation or lateral instability of the Veteran's right knee; therefore, the 20 percent rating under DC 5257 does not apply in this instance. The Board appreciates the Veteran's honest disagreement with his assigned rating based on the May 2008 VA radiologist's use of the word "moderate," and the complexity of the diagnostic codes pertaining to the knees. 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 extra-schedular 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 extra-schedular 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 applicable rating criteria adequately contemplate the manifestations of the Veteran's degenerative joint disease of the right knee. The rating criteria are therefore adequate to evaluate the right knee and referral for consideration of an extraschedular rating is not warranted. Moreover, even if the established schedular criteria are found to be inadequate to describe the severity and symptoms of the Veteran's right knee disability, this case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization. The occurrence of an incident in which the Veteran missed at most 4 days due to his right knee disability two years ago does not rise to the level of marked interference with employment, and there is no evidence of an exceptional or unusual disability picture such as frequent periods of hospitalization. The Board thus finds that referral for consideration of an extraschedular rating is unwarranted. Finally, the Court of Appeals for Veterans Claims has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has not reported unemployability due to his degenerative joint disease of the right knee, and the August 2012 VA examiner found that the Veteran's knee condition(s) does not impact his ability to work; thus, TDIU is not raised by the record. ORDER An initial rating in excess of 10 percent for degenerative joint disease of the right knee is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs