Citation Nr: 1329027 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-27 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for residuals of a right knee cyst excision with degenerative arthritis. ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1977 to October 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran was scheduled for a Travel Board hearing at the RO in June 2013; however, he failed to report for that hearing. As he has not provided cause for his failure to appear or requested another hearing, the Veteran's hearing request is deemed withdrawn and the Board will proceed with its review on the present record. 38 C.F.R. § 20.704(d). The Veteran was previously represented by private counsel. In correspondence received on August 2013, the Veteran withdrew his power of attorney and he indicated that he wished to represent himself. Counsel submitted a letter to VA confirming that he no longer represents the Veteran. A review of the Veterans Benefits Management System and Virtual VA paperless claims processing system do not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The Veteran's right knee disability has been manifested by pain and limitation of motion; however, there has been no ankylosis, dislocated semilunar cartilage, no limitation of extension, or impairment of the tibia and fibula, and the remaining functional flexion is better than 45 degrees. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for the right knee disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.7, 4.59, 4.71a, Diagnostic Code 5010 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1). This appeal arises from a notice of disagreement with the initial assignment of a disability rating following a grant of service connection. As the June 2007 rating decision on appeal granted the Veteran's claim of entitlement to service connection for residuals of a right knee cyst excision with degenerative arthritis, the claim is now substantiated. As such, his filing of a notice of disagreement as to these determinations does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). Under these circumstances, VA fulfilled its obligation to advise and assist the Veteran throughout the remainder of the administrative appeals process, and similarly accorded the Veteran a fair opportunity to prosecute the appeal. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In cases like this one, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been substantiated, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement). Thus, no further notice is required and the Board finds no evidence of prejudicial error in proceeding with final appellate consideration of the Veteran's claim at this time. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). In May 2007 and November 2009, the Veteran was afforded VA examinations. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination reports reflect a review of the Veteran's claim file and treatment records and include all required findings for rating of the Veteran's right knee disabilities. The May 2007 and November 2009 VA examination reports are therefore adequate for adjudication for the claim on appeal. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. T here is no indication in the claims file that there are additional available relevant records that have not yet been obtained. Law and Regulation Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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). In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where 'the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Id. at 511 (2007). Here, the evidence does not show significant changes in the disability during the period on appeal, and a uniform evaluation is warranted. In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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. When assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The June 2007 rating decision on appeal granted service connection for the Veteran's disability and assigned a 10 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 pct and 10 pct ratings based on X-ray findings 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. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent 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. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Under Diagnostic Code 5257, which rates impairment based on recurrent subluxation or lateral instability of the knee, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability; 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint will be rated as 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, removal of semilunar cartilage that is symptomatic will be assigned a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5260, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent disability rating is assigned for extension limited to 15 degrees; a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5262, malunion of the tibia and fibula with moderate knee or ankle disability will be assigned a 20 percent disability rating, malunion of the tibia and fibula with marked knee or ankle disability will be assigned a 30 percent disability rating, and nonunion of the tibia and fibula with loose motion, requiring a brace, will be assigned a 40 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The VA Office of General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Codes 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating is based upon additional disability. Subsequently, in VAOPGCPREC 9-98 (Aug. 14, 1998), the VA General Counsel further explained that if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See also VAOPGCPREC 9-04 (Sept. 17, 2004) (which finds that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint). The VA Office of General Counsel has also stated that Diagnostic Code 5259, removal of semilunar cartilage, may result in complications producing loss of motion. As such, limitation of motion is a relevant consideration under Diagnostic Code 5259. VAOPGCPREC 9-98 (Aug. 14, 1998). Merits of the Claim In his February 2008 notice of disagreement, the Veteran alleged that he should be rated separately for degenerative arthritis, painful motion for "ankylosis of the knee," and for "cartilage dislocation." Service treatment records show that in August 1980 the Veteran was seen for musculo-tendinous injury post jogging trauma. A January 1981 record shows recurring right knee injury with a diagnosis of ganglion cyst right knee. The Veteran underwent a right knee cyst excision on March 1981 and associated arthroscopy of the right knee. An April 2007 x-ray revealed mild degenerative arthritic changes of the right knee and patella. There was no evidence of fracture or other significant abnormality. At a May 2007 VA examination, the Veteran reported having a history of functional impairment of his right knee in the form of stiffness when sitting still or sleeping, fatigability of the knees, and joint soreness elicited by physical activity. The right knee showed signs of effusion and tenderness. Range of motion testing revealed flexion to 140 degrees and extension to 0 degrees with pain at 90 degrees. Joint function after repetitive use was additionally limited by pain. The diagnosis for the right knee was status post excision of cyst of the right knee with degenerative arthritis. A physical examination of the associated scar revealed a level scar present at the right lateral knee measuring about 9 cm by 2 cm with hypopigmentation of less than six square inches. The examiner stated that it resembled a "check mark." There was no evidence of tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hyperpigmentation, and abnormal texture. There were no nodules, lumps, or cysts present on examination. In a letter received in May 2009, a private physician noted x-rays showed mild arthritis changes in both knees. During VA treatment in September 2009 and November 2009 and July 2010, the Veteran underwent bilateral intra-articular injections. Residual Functional Capacity Questionnaires dated September 2009 and October 2009 noted bilateral knee degenerative joint disease. An All Systems Form dated in October 2009 revealed right knee passive flexion to 85 degrees. Extension was normal. On VA examination in November 2009, the examiner found the Veteran had an antalgic gait and used a brace on both knees and a cane for ambulation. The right knee exhibited no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding movement. Physical examination of the right knee revealed no locking pain, genu recurvatum or crepitus. Range of motion testing revealed flexion to 140 degrees and extension to 0 degrees. The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use testing. It was noted that the Veteran had a linear scar located on the lateral aspect of the right knee. It measured 8 cm by .5 cm. It was not painful on examination. There was no skin breakdown, inflammation, edema, or keloid formation. The examiner described it as a superficial scar that was not disfiguring. It was noted that the scar did not limit the Veteran's motion or function. Statements from the Veteran's ex-wife discuss the Veteran's continued right knee pain. Analysis After a review of the lay and medical evidence, the Board finds that a higher evaluation is not warranted. The current evaluation contemplates pathology productive of painful motion. 38 C.F.R. § 4.59. The evaluation is also consistent with limitation of flexion to 45 degrees. A higher evaluation may be assigned if the disability more closely approximates the functional equivalent of limitation of flexion to 30degrees. 38 C.F.R. § 4.7; DeLuca v. Brown, 8 Vet. App. 202 (1995). Separate evaluations may be assigned for compensable limitation of extension, subluxation, or instability. Here, there have been repeated examinations and pleadings. However, neither the lay nor medical evidence suggests that flexion is functionally limited to 45 degrees. Rather, examinations have disclosed flexion limited to no less than 85 degrees. Although there are reports of pain and weakness, such as the Veteran's report of pain on a scale of 4/5, neither factor functionally limits flexion to less than 45 degrees. In light of the foregoing, the Board finds that the preponderance of the evidence is against a rating in excess of the currently assigned 10 percent rating for service-connected right knee disability. At no point during the appeal have the criteria for the next higher rating of 20 percent been met or approximated. Thus, a "staged" rating in excess of 10 percent for a right knee disability is not warranted for any period pertinent to this appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether a separate disability rating is warranted under another diagnostic code. To the extent the Veteran seeks a separate rating for ankylosis of the right knee, Diagnostic Code 5256 is not for application. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). On this record, the Board finds no basis for finding that the Veteran is experiencing ankylosis of the right knee. Although there was some reduction in movement noted on examination in May 2007, there is no evidence of ankylosis of the right knee. The Veteran has no dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, so a disability rating under those diagnostic codes is not appropriate. See 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259, 5262, 5263. To the extent that the Veteran implies that he has ankylosis or a meniscus (semilunar cartilage) impairment, he has not established his competence to enter such diagnosis, there are no Jandreau exceptions and the record is inconsistent with such pleading. Jandreau v. Nicholson, 492 F.3d 1372 (2007) (a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Further, to the extent a right knee arthroscopy was performed for the removal of the service-connected cyst, the evidence does not show additional symptoms not already contemplated by the assigned ratings under Diagnostic Codes 5010 and 5003 such that a separate rating would be assigned under Diagnostic Codes 5258 or 5259. 38 C.F.R. § 4.71a. Limitation of motion is specifically contemplated by the rating schedule. This is why the Veteran has a 10 percent minimum compensable evaluation for the joint. 38 C .F.R. § 4.59. While the Veteran has consistently complained of right knee pain throughout the period on appeal, there is no credible evidence that this painful motion resulted in additional limited range of motion or other functional impairment not already contemplated by the assigned rating. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that pain, by itself, throughout a joint's range of motion does not constitute a "functional loss" entitling a claimant to a higher rating under VA regulations that evaluate disability based upon range-of-motion loss in the musculoskeletal system, and concluded that "pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance in order to constitute functional loss." (Internal citations omitted). Thus, absent objective evidence that the Veteran's symptoms of pain result in further limitation of motion, these symptoms are most appropriately rated under Diagnostic Code 5010. The Board has considered whether the residuals of right knee cyst excision warrant separate ratings for an unstable or painful scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804. The May 2007 VA examiner stated that the residual scar resembled a "check mark." The May 2007 examiner found the residual scar was 9 cm 2 cm, but it was not painful or unstable, resulted in no limitation of function, and resulted in other pertinent physical findings, complications, conditions, signs, or symptoms. Moreover, in the May 2009 VA examination, the examiner indicated that the scar was superficial with no underlying tissue damage. It was noted that the scar did not limit the Veteran's motion or cause limitation of function. As a result, a separate compensable rating for the scar is not warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 7802-7805. See generally Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (separate ratings may be assigned for tender and painful scars and underlying functional loss due to muscle injury). Extra Schedular Considerations The Board has considered whether this case should be referred to the Director, Compensation and Pension Service, for extraschedular consideration for rating of the Veteran's service-connected right knee disability. The governing norm in such exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the Veteran has symptoms of pain and tenderness, which are contemplated in the rating schedule. There is nothing to indicate that the disability picture is exceptional or unusual. Accordingly, referral to the Director, Compensation and Pension, is not warranted. ORDER Entitlement to an initial rating in excess of 10 percent for residuals of a right knee cyst excision with degenerative arthritis, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs