Citation Nr: 1328900 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 08-33 980A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right foot disability. 2 What evaluation is warranted for a left knee strain since July 23, 2008? REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from February 1991 to April 1996. This case comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This case was remanded by the Board in January 2012 for further development. FINDINGS OF FACT 1. A right foot disability, to include degenerative joint disease, was not manifest during active service; right foot arthritis was not manifest to a compensable degree within one year of separation from active duty, and a right foot disability is not otherwise attributable to active service. 2. Since July 23, 2008, a left knee strain has been manifested by extension limited to 5 degrees, flexion no less than 90 degrees, pain on motion and no objective evidence of instability. CONCLUSIONS OF LAW 1. A right foot disability, to include degenerative joint disease, was not incurred in or aggravated by service, and right foot arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for a rating higher than 10 percent disabling for a left knee strain since July 23, 2008 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5017 (2012). 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 issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in August 2007 and November 2008, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letter 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 and VA examinations. 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 entitlement to service connection for a right foot disability. He asserts that during training he climbed rough terrain and crawled over multiple types of obstacles which regularly put his feet under a lot of stress. He states that during a particular march, he suffered a stress fracture in his feet but that he tried to continue marching as long as he could. 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 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. 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 foot disability. To that end, service treatment records show that the Veteran complained of and was treated for the right foot during service to include an injury in October 1991. The Veteran was placed on physical profile at that time; his limitations included no running, marching and/or jumping. Following examination in November 1991 the diagnoses was high grade stress fracture right second metatarsal, post traumatic changes right first metatarsophalangeal joint sesamoid and mid post traumatic changes bilateral medial tibial plateau left greater than right. In February 1992, the fracture was described as healing. He reported the foot felt good and that there was no pain or discomfort. He complained of right foot pain for six days in July 1993. An assessment of possible heel spur or stress fracture was given. The Veteran was seen for a VA examination in February 2012. That examiner noted the appellant's history of medical care for a right foot disorder while on active duty. The examiner found that any evidence of a stress fracture had resolved by February 1992. Further, the examiner opined that the appellant's current foot problems involved pain in the heel extending over the arch and into the first metatarsal phalangeal joint. The examiner found that any in-service symptoms had resolved and that there was no objective evidence to support a relationship between the appellant's former right foot diagnosis and his current disability. Further there was no anatomically plausible mechanism by which a second metatarsal stress fracture would cause the appellant's current disability. Thus, the examiner found that it was less likely than not that a current right foot disorder was related to service. Although the Veteran was treated for the right foot during service, the in service manifestations were acute and resolved prior to separation. To that end, the Veteran separated from service in April 1996 but the last mention of any right foot problems in the service treatment records is in July 1993. There is also no evidence of compensably disabling arthritis within one year of separation from active duty and the first post service mention of any foot problems is in the April 2007 claim for compensation which more than a decade 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 a current right foot 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, private treatment records and all VA medical records of file. These records do not include any opinion linking the Veteran's disability to service. Rather, the February 2012 VA examiner found that the current mild degenerative changes noted of the first metatarsophalangeal joint of the right foot and the small plantar calcaneal enthesophyte were incidental findings and not related to the prior history of stress fracture of the second metatarsal. He 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. The examiner further stated that during July 1993 it appeared the diagnosis at that time may have been plantar fasciitis, although the possibility of heel spurs or stress fracture was raised. The examiner, however, was unable to find any x-rays or other imaging studies from this time frame which might have confirmed one of these possibilities. The examiner found that it did not appear that there was any follow up visits related to this complaint or ongoing treatment. Therefore, the examiner found this to be an isolated episode which appears to have resolved and that there was no objective evidence to support a relationship between the Veteran's current right foot diagnoses and that bout of right foot pain. The examiner also found no interval records between that time frame and now to support a contention of ongoing right foot symptoms from that time to the present. The examiner found that there was no anatomically plausible mechanism by which a resolved second metatarsal stress fracture would cause the current foot symptoms or current diagnoses of right heel spur and right first metatarsophalangeal joint degenerative joint disease. He opined that it was less likely than not (less than 50 percent probability) that the Veteran's current diagnoses of right foot heel spur and first metatarsophalangeal joint degenerative joint disease were incurred in or aggravated by service or is a residual of any in service injury. The 2012 VA medical opinion is persuasive and warrants being given great probative weight. The opinion was rendered by a medical professional with the expertise to opine on the matter at issue in this case. In addition, the examiner addressed the Veteran's contentions and based his opinion on a review of the claims folder as well as a complete physical examination of the Veteran. The opinion is well reasoned and consistent with the historical record. The Board acknowledges the lay statements submitted by the Veteran and his family. In sum, his family described his physical condition before service and his limitations since service. They also commented on his foot pain and the impact on his life. To the extent that the appellant and his family argue that his disability is related to service, the Board acknowledges their contentions, but finds that as lay persons, they are not competent to render an etiology opinion on a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In sum, the most probative evidence of record is devoid of a showing that the appellant's right foot disability is related to service. Accordingly, service connection is denied. Increased rating Disability evaluations 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 his 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. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. The Veteran's left knee disability has been rated under 38 C.F.R. § 4.71a , Diagnostic Code 5017, which contemplates gout. Gout is evaluated under the provisions of Diagnostic Code 5002, for rheumatoid arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5002. Diagnostic Code 5002 assigns various ratings based on whether rheumatoid arthritis is an active process or it is manifested by chronic residuals. The ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis. The higher evaluation will be assigned. When rating rheumatoid arthritis as an active process, Diagnostic Code 5002 provides that a 20 percent rating is assigned for one or two exacerbations a year in a well-established diagnosis. A 40 percent rating is assigned for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. For chronic residuals, Diagnostic Code 5002 provides that residuals, such as limitation of motion or ankylosis, favorable or unfavorable, are to be rated under the appropriate diagnostic codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable, 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 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71 , Plate II (2011). Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 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. 38 C.F.R. § 4.71a. 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. Id. Diagnostic code 5259 applies to removal of symptomatic semi lunar cartilage. A 10 percent rating applies for this disability. Id. 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. Id. 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. Id. VA's General Counsel has 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 a 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 a limitation of flexion and a 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 10 percent rating assigned for a left knee strain. Initially, the Board notes that the Veteran was assigned a temporary 100 percent evaluation pursuant to 38 C.F.R. § 4.30 (2012), based on a need for post operative convalescence from October 27, 2009 to January 31, 2010, after which the scheduler 10 percent evaluation was continued. Accordingly, when reviewing the evidence applicable to the instant rating claim, the Board will consider this time frame to determine the overall impairment even though a temporary evaluation was assigned. The RO awarded the 10 percent disability rating based on painful motion. Accordingly, the RO has rated the Veteran's disability based on chronic residuals under Diagnostic Code 5002 for limitation of motion rather than an active disease process. After review of the record, the Board finds that the preponderance of the evidence is against a finding that the left knee strain meets the criteria for an evaluation in excess of 10 percent since July 23, 2008. To that end, the Veteran had left knee surgery in October 2009. At a February 2012 VA examination, left knee medial compartment osteoarthritis, status post medial meniscectomy for medial meniscus tear and chondromalacia were diagnosed. The appellant reported left knee pain, swelling, giving way and cracking. He reported that he had fallen down the stairs because his knee gave way. He also reported trouble squatting and kneeling. Range of motion testing revealed left knee flexion to 90 degrees with pain beginning at that point. Extension was to 5 degrees without objective evidence of painful motion. The Veteran was able to perform repetitive testing without additional limitation in range of motion. He had functional loss or additional limitation of range of motion of the knee to include less movement than normal, pain on movement, deformity and disturbance of locomotion. There was also knee tenderness. Tests for anterior, posterior, and medial lateral instability revealed normal findings. There was no evidence or history of recurrent patellar subluxation/dislocation and/or shin splints. The appellant's residual symptoms due to his meniscectomy included medial compartment osteoarthritis with pain, swelling and limited motion. There were no residuals from the October 2009 left knee medial opening wedge proximal tibial osteotomy with tricortical iliac crest bone graft harvesting. The above findings preponderate against entitlement to a rating higher than 10 percent based upon painful motion. The Veteran retains the functional equivalent of flexion to 90 degrees even when accounting for pain. Also, extension at most has been limited to 5 degrees without objective evidence of painful motion. These findings provide no basis to provide a higher rating for the left knee. Indeed, the appellant's range of left knee motion warrants a noncompensable rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. The Board has considered the holding in DeLuca and finds that the assigned 10 percent evaluation appropriately compensates the Veteran's pain in light of the noncompensable loss of flexion and extension. As noted, the February 2012 examination revealed no objective evidence of painful left knee motion on extension, and despite painful left knee flexion there was no additional limitation of motion after repetitive testing. Such findings preponderate against establishing entitlement to an evaluation in excess of 10 percent for the left knee based upon painful motion. The Board has considered whether a separate compensable evaluation is warranted based on instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran has reported left knee giving way which has caused him to fall at times. He also reports wearing a knee brace. Although the Veteran reports left knee instability, clinical examinations reveal no ligamentous instability. There is also no evidence or history of recurrent patellar subluxation/dislocation. The Veteran is competent to report giving way, however, there has been no objective findings of instability or subluxation. Given the examiner's experience, knowledge, and expertise the Board finds that the objective findings are of greater probative value than statements made in support of a claim for monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a Veteran's testimony simply because he is an interested party; personal interest may, however, affect the credibility of the evidence). Accordingly, the evidence preponderates against finding entitlement to a separate rating under Diagnostic Code 5257. Also, the record reflects that the Veteran has been diagnosed and treated for meniscal tears of the left knee. The Board, therefore, has considered whether a separate rating under Diagnostic Code 5258 is warranted. A review of the evidence of record, however, shows that the Veteran's disability has not been manifested by frequent episodes of locking, pain, and effusion into the joint. Accordingly, a Diagnostic Code 5258 is not applicable. Furthermore, the evidence is devoid of a showing of ankylosis, or impairment of the tibia and fibula. The Board has considered whether the Veteran met the criteria for a separate compensable rating for the scar on his left knee. Under the diagnostic criteria for scars, a compensable rating requires a deep, nonlinear scar that is at least 6 square inches in size, a superficial nonlinear scar of at least 144 square inches, or a scar that is unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code7801-7804. Although surgical scarring was shown during the February 2012 examination, the scars were not painful, unstable and/or greater than 39 centimeters. As such, the scarring is not of the size and/or severity to warrant a compensable rating. The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated to include his reports of pain, swelling, instability and cracking. The Veteran is competent to report such symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board 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 showing that the criteria for the next higher evaluation have been met. Past examinations disclosed some limitation, but nothing approximating the functional equivalent of limitation of flexion to 45 degrees or less, or limitation of extension greater than 10 degrees. Even when considering the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59, as well as the symptoms reported, the competent evidence does not show the functional equivalent of disability required for a higher evaluation. 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 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, 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 foot disability is denied. Entitlement to an evaluation higher than 10 percent disabling for a left knee strain since July 23, 2008 is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs