Citation Nr: 1329435 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 08-27 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for retropatellar pain syndrome of the right knee for the period beginning September 1, 2008. 2 Entitlement to an evaluation in excess of 10 percent for retropatellar pain syndrome of the left knee for the period beginning September 1, 2008. 3. Entitlement to an evaluation in excess of 20 percent for residuals of distal tibia and fibula fractures of the left leg for the period beginning September 1, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from March 1962 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of December 2006. In a decision/remand dated in February 2012, the Board denied evaluations in excess of 10 percent each for the Veteran's bilateral knee disabilities, and granted a higher rating of 20 percent for the left tibia and fibula fracture residuals, all of which were effective through August 31, 2008. The remaining issues of entitlement to higher ratings for these disabilities beginning September 1, 2008, were remanded for additional development. The issue of entitlement to an evaluation in excess of 20 percent for residuals of left distal tibia and fibula fractures for the period beginning September 1, 2008, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period beginning September 1, 2008, the Veteran's service-connected right knee disability has been manifested by flexion limited, by pain, to 120 degrees, and with full extension, without subluxation, instability, meniscal pathology, or additional functional impairment or varying and distinct levels of severity; the schedular criteria are adequate. 2. For the period beginning September 1, 2008, the Veteran's service-connected left knee disability has been manifested by flexion limited, by pain, to 115 degrees, and with full extension, without subluxation, instability, meniscal pathology, or additional functional impairment or varying and distinct levels of severity; the schedular criteria are adequate. CONCLUSIONS OF LAW 1. For the period beginning September 1, 2008, the criteria for a rating in excess of 10 percent for a service-connected right knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.44, 4.45, 4.59, 4.71a, Diagnostic Codes 5099-5024, 5003 (2012). 2. For the period beginning September 1, 2008, the criteria for a rating in excess of 10 percent for a service-connected left knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.44, 4.45, 4.59, 4.71a, Diagnostic Codes 5099-5024, 5003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a letter dated in April 2006, prior to the initial adjudication of the increased rating claims, the RO advised the claimant of the information necessary to substantiate the claims, and of his and VA's respective obligations for obtaining specified different types of evidence. He was informed of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., treatment records and statements of personal observations from other individuals. He was informed that a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). He was also provided with information regarding effective dates. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, the duty to notify has been satisfied. Under the VCAA, the VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained, as have VA treatment records. He has not identified any other potentially relevant evidence, such as private treatment records. Pursuant to the December 2012 Board remand, recent VA treatment were obtained, and the Veteran was provided an examination in March 2012. Thus, as to the issues decided herein, there has been compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (claimant is entitled to substantial compliance with the Board's remand directives). As to the issues decided herein, the March 2012 VA examination describes the disabilities in sufficient detail for the Board to make an informed decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is no evidence indicating that the bilateral knee disabilities have worsened since this last examination. 38 C.F.R. § 3.327(a). Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Ratings-Bilateral Knee Disabilities Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. See 38 C.F.R. § 4.2 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 C.F.R. § 4.2. Service connection was granted for bilateral knee disabilities, then identified as "traumatic knee pain," in an April 1982 rating decision. The conditions were rated as noncompensably disabling, until a March 2003 rating decision granted a 10 percent rating for each knee disability, effective in June 2002; at that time, based on the diagnoses in a February 2003 VA examination, both knee disabilities were recharacterized as "retropatellar pain syndrome with suprapatellar effusion." As noted above, in February 2012, the Board denied evaluations in excess of 10 percent each for the Veteran's bilateral knee disabilities, effective through August 31, 2008. Therefore, this decision only addresses the ratings to be assigned for the Veteran's bilateral knee disabilities, beginning September 1, 2008. The Veteran's bilateral knee conditions are currently rated under Diagnostic Code 5099-5024. Here, the hyphenated diagnostic code signifies that the disability is unlisted and must be rated analogously to a closely related disability; the additional code is shown after the hyphen. 38 C.F.R. §§ 4.20, 4.27 (2012). Diagnostic Code 5024 pertains to tenosynovitis, which is to be rated based on limitation of motion of the affected parts, as arthritis, degenerative. Diagnostic Code 5003 provides that degenerative arthritis 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, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, 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 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, warrants a 10 percent evaluation; with the addition of occasional incapacitating exacerbations, a 20 percent evaluation is warranted. 38 C.F.R. § 4.71a, Code 5003. The March 2012 VA examination noted that imaging studies had shown arthritis in the knees, and VA outpatient treatment records report degenerative joint disease of the knees, but because the disability has already been rated based on the criteria for degenerative joint disease, this additional diagnosis does not affect the assessment of the Veteran's claims. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2011). Limitation of leg (knee) flexion is rated 0 percent when limited to 60 degrees, 10 percent when limited to 45 degrees, and 20 percent when limited to 30 degrees. 38 C.F.R. § 4.71a, Code 5260 (2012). Limitation of extension of a leg (knee) is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, and 20 percent when limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5261 (2012). Separate ratings may be awarded for limitation of flexion and limitation of extension. VAOPGCPREC 9-2004. The Veteran stated, in his substantive appeal dated in September 2008, that he has limitation of motion of his knees to a greater degree than the 130 degrees shown on the October 2006 examination. On the VA examination in March 2012, flexion in both knees was to 130 degrees. However, in the right knee, objective evidence of painful motion began in the right knee at 120 degrees, and in the left knee at 115 degrees. Thus, although there is some limitation of flexion in the knees, the limitation of motion does not approach the limitation to 30 degrees which is contemplated for a higher rating of 20 percent. Extension was to 0 degrees in both knees, which is normal. When evaluating musculoskeletal disabilities based on limitation of motion, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). On the March 2012 VA examination, flexion was to 125 degrees in both knees after repetitive use testing with 3 repetitions. The examiner identified the Veteran's functional impairment as less movement than normal, and pain on movement. However, even with these factors the range of motion still substantially exceeds the range of flexion of 30 degrees contemplated for a higher rating. The examiner found no other functional impairment. Strength testing was normal, with strength on flexion and extension of 5/5 in both knees. At the time of his VA examination in March 2012, the Veteran complained of bilateral knee pain with ambulation of about 100 yards, which he said was his major complaint. The examiner also noted that the Veteran had tenderness to palpation in both knees. Flexion was limited by pain in the right knee at 120 degrees, and in the left knee at 115 degrees. In addition, outpatient treatment records dated from September 2008 to March 2012 show the Veteran complained of knee pain on a few occasions during this period. Painful motion is an important factor of disability, and 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. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). However, the Veteran is already in the receipt of the minimum 10 percent ratings for each knee disability. Moreover, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must cause additional functional impairment. Functional impairment, beyond the impairment contemplated by the current 10 percent evaluations for each knee, has not been demonstrated. The functional range of flexion to 120 degrees in the right knee and 115 degrees in the left knee takes into account the painful motion beyond those points, and still far exceeds 30 degrees. The Veteran stated, however, in September 2008, that the reason his knees do not have greater limitation of motion is because he constantly takes medication. However, according to a VA outpatient treatment record dated in March 2009, which noted complaints including knee pain, it was noted that the Veteran was not really taking medication for pain. He was to be given a trial of medication, but there is no indication of any follow-up. Moreover, the Veteran's demonstrated range of motion, with pain, still far exceeds the 30 degrees of flexion contemplated for a higher rating. The evidence does not indicate that a higher or separate compensable rating is warranted under any other Diagnostic Code pertaining to the knees. The few outpatient treatment records referring to the knees show only complaints of pain. Tests of stability in both knees on the March 2012 VA examination were normal. Additionally, there was no evidence of history of recurrent subluxation or dislocation, and X-rays did not show subluxation. Therefore, a separate rating under Diagnostic Code 5257 is not warranted. The examiner stated that the Veteran had had no meniscal conditions or surgery for a meniscal condition, which is consistent with the remainder of the record; therefore, a rating under Diagnostic Code 5258 or 5259 is not indicated. There is no indication, lay or medical, of ankylosis, which is immobility and consolidation of a joint due to disease, injury or surgical procedure. See Cullen v. Shinseki, 24 Vet. App. 74 (2010). Thus, a higher rating based on ankylosis, under Diagnostic Code 5256, is not warranted. At the March 2012 VA examination, the Veteran said that he had to use a cane to ambulate safely. The examiner also stated that the Veteran constantly used a cane as an assistive device. However, VA outpatient treatment records show that the Veteran suffers from a non-service-connected lower extremity disability, peripheral vascular disease, which is manifested by symptoms including claudication. In May 2011, he underwent physical therapy for gait training, noted to be training in the use of a cane for his peripheral vascular disease. Thus, the medical reason for the cane is not a knee disability. The Board also notes that there is no evidence of weakness or instability. Accordingly, the weight of the evidence establishes that the Veteran's cane is required for a non-service-connected lower extremity condition, rather than the service-connected knee disabilities. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. Jul. 17, 2009). Under Thun, there is a three-step analysis in determining whether referral for extraschedular consideration is appropriate. The initial step is a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Id. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In addressing the first step, the Board finds that the Veteran's symptoms are contemplated by the rating schedule, which provides for higher evaluations for the service- connected left knee condition at issue. There is no symptomatology pertaining to the left knee condition which the Board has not considered. The Veteran has not argued, nor does the evidence suggest, that the schedular criteria are inadequate. Therefore, the ratings are adequate, and referral for extraschedular consideration is not required. For the foregoing reasons, the Board concludes that the evidence establishes that beginning September 1, 2008, the Veteran's bilateral knee symptoms have not more closely approximates the criteria for a higher rating, for any definable time period. A rating in excess of 10 percent is not warranted for either the right or left knee disability, nor is an additional separate compensable rating under another diagnostic code warranted. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, the preponderance of the evidence is against the claims, and, therefore, the claims must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER For the period beginning September 1, 2008, an evaluation in excess of 10 percent for a right knee disability is denied. For the period beginning September 1, 2008, an evaluation in excess of 10 percent for a left knee disability is denied. REMAND Unfortunately, the VA examination provided in March 2012 did not address the Veteran's left lower leg disability, which consists of residuals of distal tibia and fibula fractures, currently assigned a 20 percent evaluation. In this regard, the vague references to a "lower leg condition" in the examination report cannot be considered to have addressed the matter, inasmuch as the examiner specifically stated there was no indication of any tibial or fibular impairment. Indeed, the examiner reported that that there were no additional conditions, including tibial or fibular impairment. This is clearly contradictory to the record, which shows that the tibial and fibular fractures in service are documented, and X-rays as recently as October 2006 disclosed old healed fracture of the tibia and fibula; and the fact that the Veteran is currently in receipt of a 20 percent disability rating therefor. As such, the March 2012 VA examination is inadequate. Hence, the Veteran must be accorded another VA examination to determine the residuals, since September 1, 2008, of his in-service left distal tibia and fibula fractures, to include associated ankle impairment. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the manifestations and severity of the Veteran's service-connected fractures of the left distal tibia and fibula, to include ankle impairment. The claims folder must be provided to the examiner for review in connection with the examination. All findings must be reported in detail, including those related to functional impairment. If the Veteran's service-connected left leg disability has improved or has resolved, a full explanation thereof shall be provided. Additionally, appropriate consideration must be given to the Veteran's own lay history of symptomatology. All indicated tests should be conducted, and the results reviewed, prior to the examiner's final report. All conclusions and opinions must be supported by an adequate rationale or explanation. 2. Then, readjudicate the issue of entitlement to an evaluation in excess of 20 percent for residuals of fractures of the left distal tibia and fibula, for the period beginning September 1, 2008. If the benefit sought is not granted in full, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs