Citation Nr: 1329446 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 09-47 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a rating in excess of 10 percent for chondromalacia patella of the right knee. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2000 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In September 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript from that hearing has been associated with the claims file. This claim was previously before the Board in September 2012 and was remanded to the RO for additional development and adjudication, to include obtaining relevant medical records and providing a VA examination. After appropriate action, the RO continued the denial of the claim (as reflected in a January 2013 supplemental statement of the case (SSOC)), and returned the case to the Board. In addition to the paper claims file, there is a paperless, electronic claims file. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran's disability of the right knee has been manifested by flexion limited to 115 degrees (with pain at 40 degrees) and extension to 0 degrees. 2. The Veteran's right knee disability is not manifested by ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, removed semilunar cartilage, flexion limited to 30 degrees or less, extension limited to 15 degrees or less, or impairment of the tibia or fibula or genu recurvatum. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5014, 5256-63 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). A letter provided to the Veteran in December 2008 informed her that she must demonstrate a worsening in her disability. It also informed her that she could submit evidence about how her disability impacted her ability to work, and the letter included notice as to how VA assigns disability ratings and effective dates. This letter was provided to the Veteran before the initial adjudication of her claim in April 2009. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. VA has obtained the Veteran's service and post-service treatment records. The Veteran was also was provided with VA examinations in connection with the present appeal. The examination reports are adequate for adjudicative purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The VA examiners reviewed the claims file, and interviewed and examined the Veteran. The examination reports reflect that the Veteran was given an opportunity to identify symptoms associated with her right knee disability and any resulting functional impairment, and all pertinent clinical findings needed to properly assess the Veteran's disability under applicable rating criteria were provided. The Veteran was afforded a hearing before the undersigned VLJ. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the VLJ did not note the bases of the prior determination. However, the VLJ asked specific questions directed at identifying the Veteran's symptoms. The VLJ also specifically sought to identify outstanding evidence not currently associated with the claims file that might substantiate the claim, to include location, dates, and providers of the Veteran's care. The Veteran noted her recent treatment history and symptoms. Also, the VLJ held the record open for 30 days to afford the Veteran the opportunity to submit additional evidence. Neither the Veteran nor her representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Finally, this case was remanded by the Board in September 2012 for further development. The record indicates that the Appeals Management Center (AMC) requested that the Veteran provide more evidence or information pertaining to her private and VA treatment providers, and, the AMC scheduled her for a new VA examination. The AMC later issued a rating decision and an SSOC. Based on the foregoing, the AMC substantially complied with the mandates of the remand. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist her 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 Rating Disability ratings are based on the average impairment of earning capacity established in the Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Although, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Veteran's right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5014. Diagnostic Code 5014 pertains to osteomalacia. Osteomalacia will be rated on limitation of motion of the affected part or as degenerative arthritis. Degenerative arthritis, when 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 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The knee is considered a major joint. 38 C.F.R. § 4.45(f) (2012). The normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. Plate II. Additionally, when evaluating a knee disability, the Board has a duty to acknowledge and consider all potentially applicable rating criteria. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Diagnostic Code 5257 provides a 10 percent rating if recurrent subluxation or lateral instability of the knee is slight; if moderate, a 20 percent rating; and if severe, a 30 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Diagnostic Code 5258 grants a 20 percent evaluation for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion in the joint. Diagnostic Code 5260 provides a 10 percent evaluation if flexion is limited to 45 degrees; a 20 percent evaluation if flexion is limited to 30 degrees; or a 30 percent evaluation if the flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260. Diagnostic Code 5261 provides a 10 percent evaluation if extension is limited to 10 degrees; a 20 percent evaluation if extension is limited to 15 degrees; a 30 percent evaluation if extension is limited to 20 degrees; a 40 percent evaluation if extension is limited to 30 degrees; or a 50 percent evaluation if extension is limited to 45 degrees. See 38 C.F.R. § 4.71a, DC 5261. Separate ratings may be awarded for limitation of flexion and limitation of extension of the same knee joint. VAOPGCPREC 09-14 (September 17, 2004). Additional rating criteria are found under DCs 5256 (ankylosis of the knee), 5259 (removal of semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum acquired, traumatic, with weakness and insecurity in weight-bearing objectively). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376- 77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In September 2004, the RO granted service connection and assigned a 10 percent rating for chondromalacia patella of the right knee based on functional loss due to pain. The RO received a claim for an increased rating in December 2008. During VA examination in February 2009, the Veteran indicated that she experienced pain of the right knee and rated the pain at a level of four (on a scale of one to 10). She also indicated that she experienced flare-ups three to four times per week. She described the pain associated with flare-ups as being a seven to eight (on a scale of one to 10). The Veteran also described subjective complaints of pain, swelling, stiffness, instability and walking limited to one mile. She denied having weakened movement, excessive fatigue, or incoordination. Physical examination revealed no patella deformity, effusion, inflammation or locking. There was no patellar instability and the Lachman's test was negative. While the Veteran's joint function was limited by pain, fatigue and lack of endurance, flexion was from 0 to 140 degrees and extension was 0 degrees. Repeated movements did not reveal pain, weakened movement, excessive fatigability, or incoordination. A report of an X-ray study shows an intact skeletal structure of the knee with no destructive process. The diagnosis was right chondromalacia patella, worsening with age. The examiner added that the Veteran's estimated range of motion and joint function was additionally limited by pain, fatigue, weakness, and a lack of endurance following repetitive motion during a flare-up with pain causing the most functional impact. VA treatment records note complaints of knee pain and that the Veteran received treatment. See April 2009 VA treatment records. An April 2011 VA Physical Therapy note records the Veteran's pain level ranging between three and nine (on a scale of one to 10). At the Veteran's September 2011 Travel Board hearing, she stated that because of the pain in her knee, she had difficulty ambulating stairs and walking, and had to constantly move or rotate her knee. She was unable to sit for long periods of time. She stated that she could not do any high-impact activities and that she had to constantly pop her knee. She stated that at her place of employment, she worked eight-hour shifts on concrete and took medication to "get through" and could not do certain jobs at work because she was on medication. At the September 2012 VA examination, the Veteran complained of daily pain around her knee cap and behind her knee. She stated that her knee does not swell, but she feels that if she does not bend it to make it pop when lying down, it will stay stiff. The Veteran rated her daily pain at a six to seven (on a scale of one to 10) which could go up to a nine to 10 during flare-ups. The examiner noted that the Veteran worked on concrete during day and experienced flare-ups which caused her to limp. Upon examination, range of motion for the right knee was from 0 to 115 degrees with pain at 40 degrees. No hyperextension or additional limitation following repetitive use was noted. Tenderness or pain to palpation of the joint line or soft tissue was present. Muscle strength was 5/5. Joint stability was normal and x-ray findings revealed no patellar subluxation. No locking, pain or effusion was found, although the Veteran walked with a slight antalgic gait. No instability or subluxation was shown either. The examiner attributed the Veteran's complaints of giving way to pain, not instability. Additionally, her complaints "locking" in extension was psuedolocking which is a common complaint with chondromalacia patella. The Veteran's complaints were due to pain, not true mechanical locking. The Veteran is not entitled to a disability evaluation in excess of 10 percent for her right knee disability at any time during the pendency of this appeal. The Veteran's right knee symptoms do not more nearly approximate the criteria for a higher evaluation under Diagnostic Code 5014. There is no x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations to warrant a 20 percent disability rating. See 38 C.F.R. § 4.71a, DC 5003, 5014. The requirements for the assignment of a higher rating are not met under either Diagnostic Code 5260 or 5261, too. In 2009, VA examination shows full range of motion on flexion and extension. Moreover, in September 2012 flexion was limited to 115 degrees. Extension was full. See 38 C.F.R. § 4.71a, DC 5260, 5261. The Veteran's flexion is not limited to 30 degrees nor is her extension limited to 15 degrees. As such, a disability evaluation in excess of 10 percent is not warranted based on limitation of flexion or limitation of extension. Additionally, the Board has considered whether higher or separate disability ratings may be assigned under other relevant diagnostic codes. However, Diagnostic Code 5256, ankylosis, is not applicable in this case, as there is no evidence of ankylosis of the right knee. 38 C.F.R. § 4.71a, Diagnostic Code 5256. The Veteran has the ability to flex and extend her right knee. The assignment of a separate rating under Diagnostic Code 5257 is not appropriate either. Despite the Veteran's subjective complaints of instability, the objective evidence of record fails to show any knee impairment with recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. On VA examination in February 2009, the examiner found no instability and Lachman's test was negative. Additionally, on VA examination in September 2012, the examiner again addressed the Veteran's complaints and attributed them to pain. It is also noted that physical examination revealed stable joints and x-ray findings were normal. While the Veteran's subjective complaints are acknowledged, the Board finds that the objective evidence of record is of more probative value. The objective examination findings and tests consistently show normal findings in this regard and the 2012 medically qualified examiner attributed the Veteran's knee symptoms to pain. As there is no indication of recurrent subluxation or lateral instability, a separate rating under Diagnostic Code 5257 is not warranted. Diagnostic Code 5258 provides the rating criteria for dislocation of semilunar cartilage and Diagnostic Code 5259 provides the rating criteria for symptomatic removal of semilunar cartilage. See 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. In this regard, separate ratings are not warranted under Diagnostic Code 5258 because there is no history of a meniscus tear or surgery. Although the Veteran has complained of locking and popping in her right knee, the September 2012 VA examiner equated the locking to pain. The locking is not the result of a dislocation of semilunar cartilage. Further, there is no medical evidence in the February 2009 and September 2012 VA examinations showing dislocations with frequent episodes of effusions in the joint. A separate rating for removal of the semilunar cartilage under Diagnostic 5259 is also not warranted. The Veteran has not undergone surgery of the right knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5259. Additionally, there is no impairment of the tibia and fibula or genu recurvatum. Thus, Diagnostic Code 5262 (impairment of the tibia and fibula) and Diagnostic Code 5263 (genu recurvatum) are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263. The Board recognizes the Veteran's reports of right knee pain, soreness, popping, swelling and giving way. The Veteran's grandmother indicated that she has observed the Veteran's experiences with knee stiffness, which causes the Veteran not to sleep well at night. While the Veteran and her family members reported that the Veteran experiencing symptoms, the objective evidence of record, showing slight impairment is of more probative value. Even when considering the Veteran's subjective complaints, the effects of her pain are contemplated in the evaluation, and increased functional impairment so as to assign a higher rating is not present. As noted above, the Veteran's right knee has range of motion from 0 to 115 degrees with pain at worse. The Veteran is able to work, albeit with accommodations, and walk for a mile. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. The Board has considered the applicability of the benefit of the doubt doctrine. However, the evidence is against the award of a schedular disability rating in excess of 10 percent for chondromalacia patella of the right knee. Therefore, the benefit of the doubt doctrine is not applicable. The Veteran's claim must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55- 57 (1991). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's right knee disability, which includes pain and limited motion. The Veteran's right knee disability has flexion limited to 115 degrees and full extension. Objective evidence of instability, subluxation, anklyosis, or any semilunar cartilage impairment is not present. Thus, the currently assigned 10 percent rating is adequate and is fully contemplated in the schedular criteria. Referral for consideration of the extraschedular rating is not warranted. Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's complaints of experiencing difficulty at work are acknowledged, and it is acknowledged that work accommodations have been made. Nonetheless, the record shows that the Veteran has been and remains employed. See September 2009 notice of disagreement and September 2012 VA examination report. As the record does not suggest that the Veteran is unable to obtain or maintain substantially gainful employment, entitlement to a TDIU has not been raised by the evidence of record. ORDER Entitlement to a disability evaluation in excess of 10 percent for chondromalacia patella of the right knee is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs