Citation Nr: 1329459 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 07-25 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial disability rating in excess of 10 percent from November 18, 2008, for right knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from July 1997 to November 1997 and from March 2003 to May 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The claim has since been transferred to the Denver, Colorado RO. In an August 2009 supplemental statement of the case, a Decision Review Officer (DRO) awarded a 10 percent evaluation for right knee disability, effective from November 18, 2008. As this award does not represent a total grant of the benefits sought on appeal, the claim for an increased rating for right knee disability remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In August 2010, the Veteran testified before the undersigned Acting Veterans Law Judge (VLJ). A hearing transcript is associated with the claims files. In January 2011, the Board remanded the issue of entitlement to an increased initial disability rating for the Veteran's right knee disability for additional development. In July 2012, the Board denied an initial compensable evaluation for right knee disability prior to November 18, 2008, and remanded the claim for an evaluation in excess of 10 percent from November 18, 2008. The claim for an evaluation in excess of 10 percent from November 18, 2008, has been returned to the Board for disposition. FINDING OF FACT From November 18, 2008, the Veteran's right knee disability has been manifested by flexion at worst of 127 degrees (140 degrees is normal) and extension at worst of 10 degrees (0 degrees is normal); there was no ankylosis, subluxation or lateral instability, episodes of "locking," pain and effusion into the joint, or nonunion/malunion of the tibia and fibula. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for right knee disability from November 18, 2008, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1-4.10, 4.71a, Diagnostic Codes 5299-5014 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VA met its duty to notify. The Veteran's claim arises from his disagreement with the initial disability evaluation assigned following the grant of service connection for right knee disability. The Veteran filed his claim in July 2005. The RO provided him with a VCAA letter in September 2005, prior to the rating decision on appeal, that did not include notice of the disability rating and effective date elements of his claim. In cases where service connection has been granted and an initial rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven. As a result, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Notwithstanding, VA sent to the Veteran notice of how VA assigns disability ratings and effective dates in a March 2006 letter, and subsequently readjudicated that claim in March 2013. Following provision of all required notice and completion of all indicated development of the record, the originating agency readjudicated the claim in March 2013, affording due process of law, and issued to the Veteran a supplemental statement of the case dated in March 2013. . See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. VA also met its duty to assist. All relevant medical records have been obtained and associated with the record. VA afforded the Veteran VA examinations. The Board previously reviewed the record, determined that the VA examination of record was inadequate, and remanded the case for the purpose of affording the Veteran a new VA examination. The Veteran presented for VA examination in January 2013. The Board has reviewed the examination report and finds substantial compliance with the requirements articulated in the Board's prior remand decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). VA further provided the Veteran a hearing before the Board. Under 38 C.F.R. § 3.103(c)(2), a VLJ who conducts a hearing must fulfill two duties: First, the VLJ must fully explain the issues and, second, the VLJ must suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue on appeal and the testimony reflects an understanding of the issue on appeal. The Veteran testified that his condition was worse than when previously examination. It is noted that the remand of this case was predicated on this testimony. Therefore, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See also, Bryant v. Shinseki, 23 Vet. App. 488 (2010). Accordingly, the Board will address the merits of the claim. II. Evaluation of Right Knee Disability The Board granted a 10 percent evaluation for right knee disability for the period from June 20, 2005, to November 17, 2008, based on painful motion, and remanded the matter of entitlement to an evaluation in excess of 10 percent from November 18, 2008, based on the Veteran's testimony of increased symptoms since his last VA disability evaluation. The Veteran seeks an evaluation in excess of 10 percent from November 18, 2008. He testified in August 2010 that his condition is manifested by pain, swelling, and loss of range of motion due to pain. He testified that his knee has popping and grinding sounds when going up and down the stairs. He denied lost time from work due to knee problems. He denied instability. He reported that his symptoms flare- up with cool weather and that he treats symptoms with Aleve or Tylenol. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re- evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Under certain circumstances, a knee disability may receive separate ratings based on evidence showing limitation of motion (Diagnostic Codes 5003, 5010, 5256, 5260, and 5261) or instability (Code 5257, 5262, and 5263). See VAOPGCPREC 9- 2004 (September 17, 2004) and VAOPGCPREC 23-97 (July 1, 1997). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, limitation of flexion is rated 10 percent when flexion is limited to 45 degrees, 20 percent when flexion is limited to 30 degrees, and 30 percent when flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension is rated 10 percent when extension is limited to 10 degrees, 20 percent rating when extension is limited to 15 degrees, 30 percent when extension is limited to 20 degrees, 40 percent rating when extension is limited to 30 degrees, and 50 percent when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight subluxation or lateral instability, a 20 percent rating is warranted for moderate subluxation or lateral instability, and a 30 percent rating is warranted for severe subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5258 pertains to dislocation of the semilunar cartilage with frequent episodes of locking, pain and effusion into the joint and is rated as 20 percent disabling. 38 C.F.R. § 4.71a, Code 5258. When evaluation of a musculoskeletal disability is based on limitation of motion, VA regulations provide, and the Court has emphasized, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Analysis Having carefully considered all the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of an initial evaluation in excess of 10 percent for right knee disability from November 18, 2008. Neither the lay nor medical evidence more nearly reflects the criteria for a higher evaluation from November 18, 2008. 38 C.F.R. § 4.7. The record shows that the Veteran works as a heavy equipment operator in pipeline construction and has lost no time from work due to his right knee disorder. VA treatment records dated since November 2008 reflect that the Veteran was assessed with patellofemoral pain syndrome, and that he had complaints of frequent swelling and stiffness with cooler weather. Report of VA examination dated in January 2011 reflects a history of right knee stiffness, decreased speed of motion, repeated effusions, and swelling. Flare-ups were described as mild, occurring weekly, lasting for hours, and precipitated by changes in the weather. The Veteran reported that he could stand more than 1 hour but less than 3; and that he could walk 1 to 3 miles. He had orthotic inserts for shoes that he occasionally used, but no knee brace. Objectively, there was crepitus, effusion, and guarding of movement. There was no instability. Range of motion was from -10 to 127 degrees with objective evidence of pain on motion. There was no additional limitation of motion following 3 repetitions of motion. There was a small effusion on physical exam. X-ray was negative for arthritis, fracture, and dislocation, but showed soft tissue swelling. There was no x-ray evidence of joint effusion. There was a small density consistent with a "fabella." Report of VA examination dated in January 2013 reflects a diagnosis for right knee patellofemoral pain without evidence of instability and no evidence of osteoarthritis. The Veteran complained of right knee pain 2 to 3 days per week triggered by driving and holding the leg in one position. He complained of some stiffness. The Veteran denied problems going up and down stairs. Pain occurs if he has to help co-workers in a trench or tighten bolts by kneeling, which lasts for 1 to 2 hours and was rated as 7 of 10 in severity. He reported that he cannot run more than 500 feet due to right knee pain. He reported that he can stand from 3 to 4 hours, and walk about 2 miles. He denied catching or locking symptoms. He denied swelling and giving way. Objectively, gait was normal. The Veteran could perform full squat but reported some tightness. There was tenderness under medial and lateral patella and at superior patellar poles on right. Patellar grind test was positive. McMurray's test was negative. There was no atrophy of disuse. There was no instability; patellar subluxation/dislocation; or tibial/fibular impairment. The range of motion was from 0 to 135 degrees on the right, limited by soft tissue. Pain began at 130 degrees on flexion. There was no evidence of pain on extension. Following repetitive-use testing, flexion was limited to 120 degrees after performing 10 squats, but there was no limitation of extension or weakened movement, excess fatigability, or incoordination. In this case, neither the lay nor medical evidence more nearly reflects the criteria for a higher evaluation from November 18, 2008. 38 C.F.R. § 4.7. There are no complaints or medical findings for ankylosis, recurrent subluxation or instability, or frequent episodes of "locking," pain, and effusion into the joint. Furthermore, from November 2008, the Veteran's flexion has been better than 60 degrees and extension has been better than 15 degrees. Although extension was limited to 10 degrees on VA examination in January 2011, this corresponds to a rating of no more than 10 percent and does not more nearly approximate the criteria for the next higher evaluation even when considered independent from the normal findings for extension on VA examination in January 2013. When considering the provisions of 38 C.F.R. § 4.40 and § 4.45 as well as the ruling in DeLuca, the Board notes that pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, No. 09-2169 (Vet. App. Aug. 23, 2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. Here, VA examination in January 2013 revealed flexion limited to 120 degrees following repetitive motion testing. This finding does not support the assignment of a higher evaluation than now assigned as the schedule requires findings that more nearly reflect flexion limited to 30 degrees for the next higher evaluation. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5260. Also, there was no additional loss of flexion, weakened movement, excess fatigability, or incoordination resulting in any additional functional limitation. Therefore, the Board finds that the current 10 percent evaluation contemplates the functional impairment caused by the Veteran's right knee symptoms. The Board accepts that the Veteran is competent to report that his disability is worse than evaluated. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation, as explained and discussed above. Additionally, the Board specifically considered whether a higher evaluation may be assigned based on any other potentially applicable provision, but finds that a higher evaluation is not warranted under any other provision. Because the Veteran's disability did not meet the criteria for a higher evaluation at any time during the appeal period, the Board finds no basis for a staged disability evaluation. See Fenderson, supra. Accordingly, the claim is denied. As the evidence is not in equipoise, there is no doubt to resolve. 38 U.S.C.A. § 5107(b); Gilbert, supra. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record reflects that the manifestations of the Veteran's right knee disability, that is, pain, painful motion, and limitation of motion, are specifically contemplated by the schedular criteria. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER An evaluation in excess of 10 percent for right knee disability from November 18, 2008, is denied. ____________________________________________ E.I. VELEZ Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs