Citation Nr: 1329350 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-13 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for left knee strain. 2. Entitlement to service connection for a ligament or tendon disorder of the left knee. 3. Entitlement to service connection for a respiratory or pulmonary disorder, to include chronic obstructive pulmonary disease, to include as due to in-service exposure to asbestos. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from July 1955 to June 1957. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). FINDINGS OF FACT 1. The service-connected left knee strain is manifested by, at most, extension limited to 5 degrees and flexion to 80 degrees, and x-ray evidence of arthritis, but not instability, subluxation, meniscal abnormality, or ankylosis. 2. The Veteran does not have a current left knee ligament or tendon disorder. 3. The Veteran's current respiratory and pulmonary disorders are unrelated to any in-service asbestos exposure or any other incident of his military service. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left knee strain have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2013). 2. The criteria for service connection for left knee ligament or tendon disorder have not been met. 38 U.S.C.A. §§ 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 3. The criteria for service connection for a pulmonary or respiratory disorder have not been met. 38 U.S.C.A. §§ 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). The Veteran's claim of entitlement to increased evaluation for the left knee disability arises from his disagreement with the initial evaluation assigned following the grant of service connection. 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). Therefore, no further notice as to this issue is needed. With respect to the claims of service connection, the RO's September and October 2008 letters advised the Veteran of the elements of the notice requirements for claims of service connection. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The letters also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. Accordingly, with these letters, the RO effectively satisfied the remaining notice requirements with respect to the issues on appeal. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained available VA treatment records and VA examination reports, assisted the Veteran in obtaining evidence, and afforded him the opportunity to present testimony, statements, and evidence. All known, identified, and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA has afforded the Veteran VA examinations with respect to his claim for an increased rating for his left knee disability and his claims for service connection. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The medical examinations and associated findings and opinions are adequate, as each was based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The case was previously before the Board in March 2012, when it was remanded for request of records, investigation of the reported asbestos exposure during service, examination of the Veteran, and medical opinions. The requested development was completed. Stegall v. West, 11 Vet. App. 268 (1998). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Increased Rating The Veteran claims entitlement to an increased initial rating for his service-connected left knee disability. This disability has been rated as 10 percent disabling, effective from August 26, 2008. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2013). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). 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). Where entitlement to compensation has already been established and an increase in the evaluation is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A November 2008 VA examination record reflects the Veteran's history of left knee pain, stiffness, swelling, episodes of giving way, and grinding with motion. He also reported moderate flare-ups once a month. He indicated that he was able to walk one to two blocks and stand 30 to 45 minutes. Examination revealed antalgic gait but no abnormal weight- bearing. Range of motion testing revealed flexion from "50 - 1000 tenderness at 0" and extension from "50-50 tenderness at 150." There was increase in pain without additional weakness, excess fatigability, incoordination, lack of endurance, or additional loss in range of motion after repetition. Examination revealed crepitus, snapping/popping, grinding, and tenderness to palpation anteriorly and at the medial and lateral joint lines. There was no laxity or subpatellar tenderness, and a McMurray's test was normal. The assessment was left knee strain. The examiner opined that the strain resulted in significant effects on occupational activities due to decreased mobility, pain, and problems with lifting and carrying based on which he was assigned different duties. The Veteran testified at an August 2009 RO hearing that his left knee "wobbles" when he used stairs or got up from a chair. He explained that he did not know if it was "going to cave" and that he used his oxygen canister "almost" as a cane. He also testified that the left knee sometimes buckled when he walked. A June 2013 VA examination record reflects diagnoses of left knee strain and mild arthritis. Examination revealed motion from 0 to 90 degrees, with pain beginning at 80 degrees. There was no objective evidence of pain on extension. After repetition, there was pain on movement and less movement than normal, but no additional limitation of range of motion. Motor strength testing and stability testing were normal. There was no evidence or history of recurrent patellar subluxation/dislocation and no meniscal condition. The examiner noted that the Veteran had regular use of a wheelchair due to severe chronic obstructive pulmonary disease. The examiner opined that there was "no pain, weakness, fatigability, or incoordination that could significantly limit functional ability during flare-ups or when the knee joint is used repeatedly over a period of time." The examiner opined that the functional limitations caused by the knee disability were "mild" and that no current anterior cruciate ligament or tendon injury was present. The examiner added that there was no documentation on any active problem list of left knee issues. The examiner found that a left knee anterior cruciate ligament or tendon injury was unlikely based on the absence of instability on the 2012 exam or 2008 exam. The examiner added that a record review revealed no evidence of such an injury. Thus, the examiner found it was "less likely than not" that the reported anterior cruciate ligament or tendon injury was caused or aggravated by the service-connected left knee strain. The left knee disability is rated at 10 percent pursuant to Diagnostic Code 5261, which rates limitation of extension of the knee, based on evidence of limitation of extension and function as a result of the left knee disability. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to 5 degrees, a 10 percent evaluation where extension is limited to 10 degrees, a 20 percent evaluation where extension is limited to 15 degrees, a 30 percent evaluation where extension is limited to 35 degrees, a 40 percent evaluation where extension is limited to 30 degrees, and a 50 percent evaluation where extension is limited to 45 degrees. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II (2013). The evidence of record reflects left knee extension limited to, at most, 5 degrees, to include after repetitive movement. The Board acknowledges that the 2008 examination record documents a finding of extension limited to "50" degrees, and a finding of flexion to "1000" degrees, however, which is not possible. The context suggests that the findings were mistyped and zeros were added to the degree of flexion and extension. This interpretation is consistent with the other evidence of record, which otherwise reveals a finding of no limitation of extension and does not reflect any evidence, to include history, of limitation of extension to include during flare-ups. Thus, the Board finds the Veteran has extension to at least 5 degrees. As the evidence does not reflect left knee extension limited to 15 degrees or more, even with consideration of extension after repetitive motion, an increased rating for a left knee disorder under Diagnostic Code 5261 is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Other potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Separate ratings may be assigned for limitation of flexion and limitation of extension for a disability of the same joint. VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2004). Limitation of flexion is assigned a noncompensable rating if limited to 60 degrees, a 10 percent rating if limited to 45 degrees, a 20 percent rating if limited to 30 degrees, and a 30 percent rating if limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). However, the evidence fails to show that the Veteran's left knee flexion has been limited to less than 90 degrees at any point during the appeal period. In this regard, the Veteran's left knee had flexion to 100 degrees during the 2008 exam and 90 degrees during the 2012 VA examination, to include after repetition, and the Veteran has not alleged additional limitation of flexion during flare-ups. Therefore, as the evidence fails to show limitation of left knee flexion to a compensable degree, a separate rating under Diagnostic Code 5260 is not warranted. In addition, as the objective evidence of record does not demonstrate left knee ankylosis, meniscal abnormality, or impairment of the fibula, tibia, or femur, an increased evaluation for a left knee disorder is not warranted on those bases. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262 (2013). Moreover, a rating in excess of 10 percent for a left knee disorder is not permitted for genu recurvatum, as there is no evidence of that disorder. 38 C.F.R. § 4.71a, Diagnostic Code 5263 (2013). The Board has also considered whether the left knee disorder is entitled to a separate rating under Diagnostic Code 5257 pertinent to recurrent subluxation or lateral instability. See VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997);VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998). Recurrent subluxation or lateral instability of the knee warrants the assignment of disability ratings of 10, 20 or 30 percent based upon whether the impairment is slight, moderate, or severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The evidence fails to demonstrate that the Veteran's left knee disability results in such impairment. In this regard, the Veteran testified that his knee gave way and "wobbles." However, the objective evidence fails to demonstrate recurrent subluxation or lateral instability, as all diagnostic testing on physical examinations have been negative. Therefore, while the Veteran reported instability in the left knee and giving way, the objective evidence does not support these statements as lateral instability or recurrent subluxation have not been shown on the clinical examinations. The Board finds the objective findings, which are consistently normal, are more probative than the Veteran's histories. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (finding that in weighing the credibility, VA may consider consistency with other evidence of record). Accordingly, a separate evaluation under Diagnostic Code 5257 is not warranted. In addition, the Board has considered whether an increased rating is warranted for arthritis. 38 C.F.R. § 471a, Diagnostic Codes 5003, 5010 (2013). Although there is objective evidence of left knee degenerative arthritis, confirmed by x-rays, Diagnostic Codes 5003 and 5010 require that the arthritis be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specified joint or joints involved. The Veteran's left knee disorder is already evaluated under the diagnostic code for limitation of extension, and as discussed above, an increased evaluation is not warranted for limitation of extension or limitation of flexion of the left knee. To assign a separate 10 percent rating under Diagnostic Codes 5003 or 5010 based on limitation of motion would compensate the Veteran for the same symptoms already considered in his current evaluation and violate the rule against pyramiding. See 38 C.F.R. § 4.14 (2013); see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Accordingly, a separate evaluation is not warranted under Diagnostic Codes 5003 or 5010. The Board has also considered whether there is any additional functional loss not contemplated in the currently assigned ratings. Factors involved in evaluating and rating disabilities of the joints include: weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013). There is evidence that the Veteran has an antalgic gait. Although the left knee shows pain from 80 degrees to 90 degrees and pain with repetitive use, there is no evidence that these factors caused additional limitation of motion not contemplated within the ratings in excess of those currently assigned. See Id.; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Accordingly, the evidence does not reflect functional loss beyond that contemplated in the currently assigned evaluations. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical"). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's left knee disorder is not so unusual or exceptional in nature as to render the ratings for this disorder inadequate. The criteria by which the Veteran's left knee disorder is evaluated specifically contemplate the level of impairment caused by that disability. Id. The Veteran's left knee disability is evaluated under to 38 C.F.R. § 4.71a for limitation of motion and arthritis of the knee, the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. The service-connected left knee strain is manifested by, at most, extension limited to 5 degrees and flexion to 80 degrees, and x-ray evidence of arthritis, but not instability, subluxation, meniscal abnormality, or ankylosis. When comparing the Veteran's symptoms with the symptoms contemplated in the Rating Schedule, the Board finds that the schedular evaluations regarding the Veteran's left knee disorder are not inadequate. Ratings in excess of the currently assigned ratings are provided for certain manifestations of the knee disorder, but the medical evidence reflects that those manifestations are not present in this case. The criteria for the assigned ratings reasonably describe the Veteran's left knee disability level and symptomatology and, therefore, the currently assigned schedular evaluations are adequate and no referral is required. After review of the evidence of record, there is no evidence of record that would warrant a rating in excess of those assigned at any time during the periods pertinent to this appeal. 38 U.S.C.A. 5110; see Fenderson, 12 Vet. App. at 126. Although there have been day-to-day fluctuations in the manifestations of the Veteran's service-connected left knee strain, the evidence shows no distinct period of time during the the appeal, during which the Veteran's left knee strain varied to such an extent that a rating greater or less than the initial 10 percent assigned would be warranted. Cf. 38 C.F.R. § 3.344 (2013) (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations). In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence does not show findings that meet the criteria for a rating in excess of the initial 10 percent currently assigned, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be established for disability resulting from personal injury incurred or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A Ligament or Tendon Disorder The preponderance of the evidence is against the claim for service connection for left knee ligament or tendon disorder. The record does not include a diagnosis of a ligament or tendon abnormality or findings suggestive thereof; there is no objective evidence of record showing that the Veteran currently has such a disorder. See Mclain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of present disability there can be no valid claim."). The Board acknowledges that the Veteran believes he has an abnormality involving the left knee ligament or tendon. Although the Veteran is competent to report buckling and instability, he is not competent to attribute those symptoms to an abnormality of a ligament or tendon of the left knee. The Board is mindful that medical evidence is not necessarily required where the determinative issue in a case involves the existence of a disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, the Veteran is not providing statements related to the diagnosis of a simple disorder or even symptomatology but is instead rendering an opinion as to whether he has an abnormality involving the ligament or tendon. The existence of such a disorder is not a disorder capable of lay diagnosis. Davidson, 581 F.3d at 1316; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the determination of the existence of such an abnormality requires medical evaluation and is a matter of medical complexity. Thus, the Board concludes that the Veteran's statements regarding the existence of a current disability do not constitute competent evidence on which the Board can make a service connection determination. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as there is no competent evidence of a current disability, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. Accordingly, the doctrine is not for application. Gilbert, 1 Vet. App. at 54. A Respiratory Or Pulmonary Disorder The Veteran contends that he has a respiratory or pulmonary disorder due to asbestos. He has reported exposure to asbestos while stationed at Fort Chaffee and at Augsburg, Germany, and submitted evidence documenting the use of asbestos at Fort Chafee. The Veteran's service treatment records are "fire-related," indicating that his service records were destroyed in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); see also Russo v. Brown, 9 Vet. App. 46 (1996). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Post-service treatment records document treatment for chronic obstructive pulmonary disease (COPD) since July 2008 and a finding of emphysema in April 2010. The records do not reflect a diagnosis of asbestosis. A June 2013 VA examination record reflects a diagnosis of COPD. The examiner opined that it was "less likely than not" that the COPD was due to asbestos during service. The examiner explained that there was no evidence of pleural plaques on chest X-ray, adding that pleural plaques support asbestos exposure. The examiner noted that pulmonary function tests showed severe airflow obstruction and chest X-ray showed hyperinflation, which was consistent with COPD. The examiner further noted that the Veteran had a well- documented 50 pack-year smoking history, prior to cessation in 1997. The examiner reported that there was a demonstrable medical evidence that long-term tobacco use caused COPD and no demonstrable medical evidence that asbestos exposure caused COPD. Service connection is not warranted for a respiratory or pulmonary disorder. The record does not suggest that a respiratory or pulmonary disorder began during service. The Board acknowledges that the service medical records are not available; however, the Veteran has never claimed he incurred a respiratory or pulmonary disorder or exhibited symptoms during his military service. Furthermore, the evidence does not contain any competent evidence linking the a respiratory or pulmonary disorder to service, to include in-service asbestos exposure. The June 2013 VA examiner provided findings that the Veteran did not have interstitial lung disease, which includes asbestosis, and that the diagnosed COPD was not related to asbestos. Although the Veteran believes he has a respiratory or pulmonary disorder due to asbestos exposure, the Board finds the Veteran's statements as to medical causation are not competent evidence to establish service connection for a respiratory or pulmonary disorder. The question of whether the Veteran's a respiratory or pulmonary disorder is related to his military service, to include in-service asbestos exposure, does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge. See Davidson, 581 F.3d at 1316; see also Jandreau, 492 F.3d at 1377. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide a competent etiological opinion that a current respiratory or pulmonary disorder was the result of his military service. Accordingly, the Board finds that these statements as to medical causation are not competent evidence to establish service connection for a lung disorder. See Davidson, 581 F.3d at 1316; see also Jandreau, 492 F.3d at 1377. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for a left knee tendon or ligament disorder and service connection for a respiratory or pulmonary disorder. Accordingly, the benefit of the doubt doctrine is not for application. Gilbert, 1 Vet. App. at 54; Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER An initial disability rating in excess of 10 percent for the left knee disability is denied. Service connection for a left knee ligament or tendon disorder is denied. Service connection for a respiratory or pulmonary disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs