Citation Nr: 1329686 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 08-00 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial compensable rating for a left knee strain prior to September 29, 2011. 2. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome of the left knee from September 29, 2011. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Appellant and J. H. ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from February 2001 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection for a left knee strain and assigned an initial noncompensable rating, effective from February 12, 2006. By a March 2012 RO decision, the schedular evaluation for the left knee disability was increased to 10 percent, effective from September 29, 2011 and recharacterized as patellofemoral pain syndrome of the left knee. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the issue remains on appeal. The Veteran and J. H. testified at a hearing at the RO in June 2013. A transcript of the hearing is associated with the claims folder. FINDINGS OF FACT 1. Prior to September 29, 2011, the Veteran's left knee disability was manifested at worst by tenderness of the medial aspect of the knee with full range of flexion and extension without pain on motion. 2. From September 29, 2011, the Veteran's left knee disability has been manifested at worst by tenderness on the patellar tendon area and full range of motion with pain. CONCLUSIONS OF LAW 1. For the period prior to September 29, 2011, the criteria for an initial compensable rating for a left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2013). 2. For the time period from September 29, 2011, the criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.129(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. As for the service-connected left knee disability decided herein, the claim for a higher disability rating is a "downstream" issue in that it arose from an initial grant of service connection. Prior to the November 2006 rating decision, the RO issued a letter in June 2006 that advised the Veteran of the evidence necessary to substantiate her claim for service connection and of her and VA's respective obligations with regard to obtaining evidence. As previously noted, in the November 2006 rating action, the RO granted service connection for a left knee strain and rated this disability as noncompensable, effective February 12, 2006. Importantly, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim for service connection has been more than substantiated, thereby making 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice requirements. Dingess, 19 Vet. App. at 490-91; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The June 2006 letter also advised her of how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations. In addition, the RO obtained the Veteran's service treatment records, post-service private and VA treatment records, VA fee-basis examinations and medical opinions, and lay statements and hearing testimony. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims file. Accordingly, VA has no duty to inform or assist that was unmet with respect to obtaining all available identified medical records. VA fee-basis examinations with respect to the left knee claim on appeal were obtained in September 2006 and September 2011. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained here are sufficient as they considered the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the rating criteria. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues being decided. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; assigning the higher rating where there is a question as to which of two evaluations apply and where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that this issue involves the Veteran's dissatisfaction with the initial rating for her disability assigned following the grant of service connection, and staged ratings are to be considered. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's left knee instability has been rated as noncompensably disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260 prior to September 29, 2011, and rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5261 from September 29, 2011. The Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. (Because ratings may be separately assigned for limitation of flexion and limitation of extension, the Board will consider both for the entirety of the period at issue-since February 12, 2006.) Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Arthritis is rated on the basis of limitation of motion of the joint affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A 10 percent rating is warranted for each major joint affected by limitation of motion even when the limitation is noncompensable. Id. The Veteran contends that her left knee disability is more severely disabling than reflected by the assigned ratings. During a VA new patient visit in May 2006, the Veteran reported a past medical history of patellofemoral syndrome. On examination of the extremities, there was no clubbing, cyanosis, or edema. During a September 2006 VA fee-basis examination, the Veteran described her history of knee pain during military service and stated that "nothing flares them up;" the pain just occurs by itself. She denied any knee buckling or locking or the need for use of assistive devices for ambulation. On examination of the left knee, there was no heat, redness, swelling, effusion, drainage, or abnormal movement. There was tenderness on the medial aspect of the left knee. Medial and lateral collateral ligaments were checked and revealed no medial or lateral instability. Posture and gait were reported as normal. Range of motion testing of the left knee revealed flexion to 140 degrees and extension to 0 degrees; there was no pain on motion and no ankylosis. The examiner indicated that the left knee was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use or during flare-ups. Neurologic examination, reflexes, sensation, and motor strength were reported as within normal limits or intact. There was no muscle atrophy noted in the lower extremities. The impression of a left knee x-ray was no significant findings. The diagnosis was mild left knee strain. In correspondence dated in December 2006 and received in February 2007, the Veteran expressed dissatisfaction with the September 2006 fee-basis examination and questioned the validity of the medical findings, asserting that it took "no more than five minutes and consisted of minimal manipulation" of her legs. She believed that the diagnosis of "left knee strain" did not adequately capture the essence of her disability. She reported that she continued to take Motrin for her knees, had difficulty walking up stairs and driving her manual shift vehicle, and her knees affected her "ability to be mobile." A February 2007 VA progress note reflects the Veteran's complaint of knee and back pain. She reported working as a prison guard and having knee pain that radiated to her feet, causing numbness. On examination, she appeared well-developed and in no acute distress. Bilateral knee examination was reported as unremarkable with no temperature change, erythema, effusion, or crepitus. Range of motion was reported as intact. Neurological examination revealed +2 deep tendon reflexes bilaterally, 5/5 motor strength, and intact sensation of the upper and lower extremities. The assessment included bilateral knee pain. In her December 2007 substantive appeal, the Veteran reported that simple tasks such as walking up stairs, running, and standing for long periods of time at work caused pain and swelling that the VA examination, which took less than five minutes, did not accurately evaluate. She indicated that the only treatment for her knees had been Motrin. She added that she had daily pain, especially during cold weather, and wanted a compensable disability rating. In August 2008 correspondence, the Veteran reiterated previous assertions regarding the severity of her left knee and added that her knees pop daily when walking up stairs or stiffen, accompanied by sharp pain with normal activities. She intended to be seen an orthopedic specialist as soon as possible to further evaluate her claim. A private consultation report by W. Buchanan, M.D., reflects that the Veteran presented later in August 2008 as a self-referral for a second opinion regarding her bilateral knee pain. She reported intermittent pain in the bilateral knees occurring most days. Her pain was worse with attempting to squat and somewhat relieved with certain exercises and Motrin. She described a feeling of anterior tightness and denied any locking, instability, posterior swelling, numbness, or tingling. Physical examination of the knees revealed full quadriceps without atrophy, 5/5 strength, medial retinacular tissues tender to range of motion of the patellofemoral joint, no medial joint line tenderness of the left knee, slight medial femoral condyle tenderness bilaterally, and stable knee ligaments bilaterally. A bilateral knee x-ray study revealed no fracture or dislocation, with no significant soft tissue swelling identified, no bony erosion or destruction seen, and visualized joint spaces were intact. The impression was an unremarkable study. The assessment was bilateral patellofemoral pain. Dr. Buchanan anticipated intermittent and recurring pain and limitation of both knees based on his examination and the Veteran's history. In a September 2011 VA form 21-4142, Authorization and Consent to Release Information, the Veteran identified the August 2008 visit for her knees and subsequent medical appointments for other claimed disabilities. The Veteran was afforded another VA fee-basis examination on September 29, 2011. She reported left knee symptoms of stiffness, swelling, heat, lack of endurance, and pain. She denied left knee weakness, redness, giving way, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation, or dislocation. She reported flare-ups involving pain traveling to her feet as often as three times per week, each lasting for ten hours and precipitated by physical activity or cold weather. During the flare-ups, she experienced difficulty with stairs, running, prolonged sitting or standing, and difficulty standing and walking. She denied any hospitalization or surgery for her left knee or any period of incapacitation in the previous 12 months. Examination of the left knee revealed tenderness on the patellar area with no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, subluxation, locking, genu recurvatum, crepitus, or ankylosis. Left knee range-of-motion testing revealed flexion to 140 degrees and extension to 0 degrees with no objective evidence of painful motion. Following repetitive motion testing, the left knee joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination. Left knee stability testing was within normal limits. The impression of a left knee x-ray was that there were no significant findings. The diagnosis was patellofemoral pain syndrome of the left knee, which the examiner opined was related to military service. In a brief discussion following the diagnosis, the examiner listed "subjective factors" as "history of left knee pain" and "objective factors" of "negative x-ray of the left knee with pain on range of motion." The Veteran identified her usual occupation as a pharmacy technician in a hospital. The examiner indicated that prolonged standing caused more pain to the knees, and during a flare-up, the Veteran has to sit and stand repeatedly, which aggravated her knees. By the March 2012 rating decision, the RO explained that the higher (10 percent) rating assigned for the left knee disability was based on 38 C.F.R. § 4.59, which allowed for a minimum compensable rating of 10 percent for painful motion of the knee. In June 2013, J. H. testified that the Veteran appeared to have left knee pain and could not walk well. The Veteran testified that her civilian doctor told her she had arthralgia of the knee and gave her exercises to strengthen her muscles to alleviate her knee pain. She stated that she commutes an hour and a half each way to her job as a pharmacy technician at a prison. She reported difficulty walking, standing for long periods, using stairs, and experiencing locking. The Veteran also claimed that the November 2006 fee-basis examination consisted of the examiner touching her knee and asking if she experienced pain. The Board has considered the medical and lay evidence of record, but finds that a preponderance of the evidence is against the claim for an initial compensable rating for a left knee strain prior to September 29, 2011. Prior to September 29, 2011, the Veteran's left knee disability was manifested by tenderness of the medial aspect of the knee with full range of motion without pain. These findings are consistent with the noncompensable rating assigned for the left knee disability. A compensable rating for a left knee disability is not warranted prior to September 29, 2011 because at no time did the objective medical evidence of record demonstrate any limitation of flexion or extension, ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, impairment of the tibia and fibula, genu recurvatum, or arthritis confirmed by x-ray evidence. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256 through 5263. The Board also finds that a preponderance of the evidence is against the claim for a rating in excess of 10 percent for the period from September 29, 2011. From this date, the left knee disability has been manifested by tenderness on the patellar tendon area. While the notation in the "diagnosis" section of the September 2011 examination report that the Veteran had pain on left knee range of motion appears to be inconsistent with the "physical examination" section, which did not identify any objective evidence of painful motion, including on repetitive-motion testing, the Board resolves reasonable doubt in the Veteran's favor and accepts the mention of painful range of motion to be accurate. Accordingly, the finding of pain on motion is consistent with the currently assigned 10 percent rating. However, for the period beginning September 29, 2011, a rating higher than 10 percent is not warranted because the examination report does not demonstrate any limitation of flexion or extension, ankylosis, recurrent subluxation or lateral instability, dislocation of semilunar cartilage, impairment of the tibia and fibula, or arthritis confirmed by x-ray evidence. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256, 5257, 5258, 5260, 5261, 5262. There is no indication that pain has caused debility greater than that contemplated by the 10 percent rating. The Board emphasizes that despite the Veteran's subjective complaints of pain, numbness, swelling, stiffness, "popping," heat, and lack of endurance, these symptoms are not confirmed by objective medical evidence of record at any time. In addition, the objective medical evidence does not reflect any functional loss beyond what is already contemplated by the noncompensable and 10 percent ratings for each period due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. See 38 C.F.R. §§ 4.40 and 4.45, and DeLuca. In this case, the September 2006 and September 2011 VA fee-basis examination reports reflect that the Veteran was able to accomplish repetitive left knee range-of-motion testing. Her range of motion, however, was not limited by pain following repetition; nor was there evidence that range of motion was affected by fatigue, weakness, lack of endurance, or incoordination. Therefore, higher ratings would not be assignable for the left knee disability based on any functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. The Board has considered the assertions by the Veteran pertaining to her left knee. She is competent to attest to the symptoms she experiences. However, the Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of her left knee disability because her subjective reports of knee symptoms such as swelling, stiffness, or lack of endurance, have not been confirmed by objective medical evidence. Instead, physical and x-ray examination reports consistently reflect essentially normal findings. The Board has also considered whether additional staged ratings are appropriate, but concludes that the criteria for higher schedular ratings for the left knee prior to and from September 29, 2011 have not been met at any time during the appeal. Therefore, additional staged ratings for a left knee strain or patellofemoral pain syndrome are not warranted for any portion of the current claim period. As a final matter, the Board has also considered whether the left knee disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical"). Here, the rating criteria reasonably describe the disability level and symptomatology for her left knee disability and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. Thus, her disability picture is contemplated by the rating schedule, and the assigned schedular ratings are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. For the foregoing reasons, the Board finds that the evidence does not support the assignment of a compensable rating for a left knee strain prior to September 29, 2011, or more than 10 percent for left knee patellofemoral pain syndrome from September 29, 2011, or at any point during the course of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, entitlement to higher ratings is not warranted, and the claims must be denied. In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER For the period prior to September 29, 2011, an initial compensable rating for a left knee strain is denied. For the period from September 29, 2011, a rating in excess of 10 percent for left knee patellofemoral pain syndrome is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs