Citation Nr: 1328591 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 08-29 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a right knee disability also claimed as secondary to the service connected left knee disability. 2. Entitlement to an increased rating for chondromalacia of the left knee, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from May 1980 and May 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Indianapolis, Indiana Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in his September 2009 VA Form 9 Substantive Appeal the Veteran indicated that he wanted to appear for a Board hearing at the local RO. In July 2013, however, he expressed that he was unable to attend the hearing and that his appeal should be continued and a decision made as soon as possible. As such, the request for the hearing is considered withdrawn. 38 C.F.R. § 20.702(e) (2012). FINDINGS OF FACT 1. A right knee disability was not manifest during active service, right knee arthritis was not manifest to a compensable degree within one year of separation from active duty, and a right knee disability is not otherwise attributable to active service and/or a service connected disability. 2. Chondromalacia of the left knee is not manifested by the functional equivalent of flexion that is limited to 30 degrees or less. There is no compensable limitation of extension or objective evidence of instability or subluxation. CONCLUSIONS OF LAW 1. A right knee disability was not incurred in or aggravated by service, right knee arthritis may not be presumed to have been incurred therein and a right knee disorder is not proximately due to, the result of, or aggravated by a service connected disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). 2. The criteria for a rating in excess of 10 percent for chondromalacia of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5260, 5257, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in May 2006 and May 2008 VA advised the Veteran of the information and evidence needed to substantiate a claim. The letters provided notice of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Service Connection The Veteran appeals the denial of service connection for a right knee disability. He claims his disability is secondary to the service connected left knee disability. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for some chronic diseases, including arthritis, may be granted if manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Section 3.310(b) was amended effective October 10, 2006, and as this claim was filed before the amendment the amended version of 38 C.F.R. § 3.310(b) is not applicable to the claim on appeal, but aggravation pursuant to Allen is for application. Based on the evidence of record, the Board finds that the preponderance of the most probative evidence is against entitlement to service connection for a right knee disability. To that end, service treatment records reveal complaints of right knee pain after a run in December 1981. Complaints of knee pain are shown in March and November 1982. The lower extremities were shown to be clinically abnormal during the May 1984 separation examination as chondromalacia of the left patella was diagnosed. While service treatment records show complaints of knee pain, the record is devoid of a showing of a chronic right knee disability. It appears that any right knee problems were acute and resolved prior to separation. At separation, no right knee diagnoses were rendered nor were pertinent findings reported. Furthermore, a compensable degree of right knee arthritis is not shown within a year of separation from service. Rather, when examined a few months after service in July 1984 no right knee manifestations were shown. A review of the record discloses that the Veteran's current right knee disability first manifested decades post service. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The claims folder does not contain any competent evidence relating the Veteran's right knee disability to service, and neither the appellant nor his representative has presented, identified, or even alluded to the existence of any such opinion. The Board has reviewed all service treatment records and all other medical records of record. These records do not include any opinion linking any current right disability to service. Rather, the November 2011 VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event or illness. He reasoned that there is no evidence of a chronic right knee condition and no abnormalities of the right knee were noted upon discharge. According the examiner, the Veteran also has chronic low back pain (for which he is not service connected) as a condition predisposing him to the right knee condition and a history of morbid obesity which is a risk factor for knee pain and degenerative joint disease. The evidence is also against a findings that the right knee disability is secondary to the service connected left knee disability. To that end, the VA examiner in October 2006 opined that it was less likely as not, less than 50 percent probability, that his right knee problem is related to the left according to statistics and because magnetic resonance imaging showed only mild inflammatory changes in the soft tissue. He also reasoned that pain in the right knee started recently, one year ago. Further the November 2011 examiner noted that the Veteran had non-service connected low back pain which predisposed him to the right knee condition. It was observed that there were no notes from Indianapolis ortho supporting that his right knee condition was secondary to his left knee condition. He reportedly was diagnosed by Indianapolis with bilateral patellofemoral syndrome in 2009. It was noted that he also had a history of morbid obesity and that this is a risk factor for knee pain and degenerative joint disease. The Board acknowledges the Veteran's contentions that his right knee condition was diagnosed after his left knee condition and that his right knee disability is secondary to his left knee disability. While the appellant is competent to report knee problems, he is not competent to render an etiology opinion on a complex medical question as presented here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As the Veteran is a layperson without the appropriate medical training or expertise, he is not competent to render probative (i.e., persuasive) opinions on this medical matter. The Board finds that the issue at hand is far too complex a medical question to lend itself to the opinion of a layperson. The Board, moreover, assigns great probative value to the opinions of the VA examiners regarding the etiology of the Veteran's right knee disability. The examinations were conducted by medical professionals with the expertise to comment and opine on the etiology of the appellant's knee disability. The examiners reviewed the record, which included the Veteran's contentions, and conducted a complete physical examination. The opinions are well reasoned and supported by the historical record, and they are afforded greater probative weight than the assertions of the appellant presented in support of a claim for monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (While VA cannot ignore a veteran's testimony simply because he is an interested party; personal interest may, however, affect the credibility of the evidence). In sum, the most probative evidence of record is devoid of a showing that the appellant's right knee disability is related to service and/or a service connected disability. Accordingly, service connection for a right knee disability is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The basis of disability evaluation 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. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). Diagnostic code 5257 refers to other impairments of the knee. An evaluation of 10 percent is assigned for slight recurrent subluxation or lateral instability, and evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. Diagnostic code 5258 applies to dislocated semi lunar cartilage with frequent episodes of locking, pain, and effusion into the joint. A 20 percent rating applies for this disability. Diagnostic code 5259 applies to removal of symptomatic semi lunar cartilage. A 10 percent rating applies for this disability. Diagnostic Code 5260 pertains to limited flexion of the knee. A 10 percent rating is applies when flexion is limited to 45 degrees. A 20 percent rating applies when flexion is limited to 30 degrees. A 30 percent rating applies when flexion is limited to 15 degrees. Diagnostic Code 5261 pertains to limitation of extension of the knee. A 10 percent evaluation is assigned for extension that is limited to 10 degrees. A 20 percent evaluation is assigned for extension that is limited to 15 degrees. A 30 percent evaluation is assigned for extension that is limited to 20 degrees. A 40 percent evaluation is assigned for extension that is limited to30 degrees. A 50 percent evaluation is assigned for extension that is limited to 45 degrees or greater. The VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 (which provides for a 10 percent rating for a noncompensable limitation of motion or painful motion of an affected joint) and 5257, provided that a separate rating must be based upon additional disability. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Also, separate rating may be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same knee, the limitations must be rated separately to adequately compensate for functional loss associated with the disability. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). The Veteran appeals the denial of a rating higher than 10 percent for chondromalacia of the left knee. His disability is rated under Diagnostic Code 5299-5260. 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. 38 C.F.R. § 4.27. Diagnostic Code 5299 represents an unlisted disability requiring rating by analogy to one of the disorders listed under 38 C.F.R. § 4.71a, while DC 5260 addresses limitation of flexion of the knee. The current rating contemplates periarticular pathology productive of painful motion. 38 C.F.R. § 4.59. Consideration is also given to additional limitation on repetition related to pain, fatigue, incoordination, weakness or lack of endurance. DeLuca, supra, 8 Vet. App. 202. The rating criteria are also consistent with flexion limited to 45 degrees. To warrant a higher rating the evidence must show the functional equivalent of flexion limited to 30 degrees or less. See DeLuca, supra. Private treatment records reveal a showing of knee flexion to 120 degrees bilaterally in March 2006. No limitation of extension was described. Bilateral knee pain that interferes with activities of daily living was assessed. During the October 2006 VA examination, the Veteran complained of knee pain when walking and/or climbing stairs. The pain was described as a six on a scale to 10. Range of motion of the knees were normal but there was cracking. There was weakened motion against strong resistance but no additional loss of range of motion after repetitive movement. There was some lateral instability in the left knee. No specific testing results were set forth. Mild chondromalacia both knees with mild functional impairment was diagnosed. When examined in July 2009, the left knee was shown to be of normal configuration. There was pain during pressure over the left kneecap, as well as, painful and limited range of motion. Flexion was to 130 degrees and extension was full. He had good stability of the medial and lateral collateral ligaments, and anterior and posterior cruciate ligaments. After repetitive motion, he had increased pain, easy fatigability, lack of endurance but no change in range of motion. Chondromalacia of the left knee joint and mild degenerative changes of the left knee joint residual from his service connected chondromalacia were diagnosed. In the August 2009 VA examination, the Veteran complained of pain and instability/giving way. Examination revealed flexion was to 120 degrees and extension was minus five degrees. The knee joint was painful on motion. After repetitive motion, there was pain at 120 degrees. There was objective evidence of painful motion and tenderness but no instability, heat, redness, swelling, effusion, weakness, abnormal movement, guarding of movement and/or edema. Based on the evidence presented, the Board finds against the claim. In this regard, at worst, the evidence reveals flexion of the left knee limited to 120 degrees which was shown after repetitive movement. These findings do not justify an evaluation higher than 10 percent disabling based on limitation of flexion. The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated to include his reports of pain and limited mobility. The Veteran is competent to report such symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board has also considered the pleadings and reports, and finds that the Veteran is credible in reporting the severity of his disability. The more credible and probative evidence, however, is devoid of a showing that left knee flexion is functionally limited to 30 degrees or less. Past examinations disclosed some limitation, but nothing approximating the functional equivalent of limitation of flexion to 30 degrees or less. Although the Veteran has knee pain, pain is considered in the current evaluation. See 38 C.F.R. § 4.59. Neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation, i.e., the functional equivalent of flexion limited to 30 degrees or less, even when considering the factors of Deluca. Accordingly, this claim is denied. The Board has considered whether a separate compensable evaluation is warranted based on limitation of extension. 38 C.F.R. § 4.71a, Diagnostic Code 5261. It is shown, however, that a compensable degree of limitation of extension is not shown by the record. Furthermore, although the Veteran has complained of instability and there was some lateral instability shown in October 2006, objective findings of recurrent subluxation or lateral instability is not shown. Rather, with the exception of the October 2006 examination, examinations have disclosed that the left knee is stable. As such, a separate rating is not warranted for limitation of extension and/or instability. There was no specific testing done in 2006 and the functional limitations of the reported instability are not described, so there is no objective basis to assign an evaluation. Moreover, he was subsequently found to have no instability confirmed by testing. The Board also notes that the evidence is devoid of a showing of ankylosis (DC 5256), dislocated semilunar cartilage (5258), or impairment of the tibia and fibula (DC 5262). As such, these diagnostic codes are not applicable. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no other provision upon which to assign a higher rating. Accordingly, the claim is denied. The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) ; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.") Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology to include pain, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a right knee disability is denied. A rating higher than 10 percent disabling for chondromalacia of the left knee is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs