Citation Nr: 1330637 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 07-28 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an increased rating for a right knee disability, currently rated 10 percent disabling. 2. Entitlement to an increased disability rating for a left knee disability, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1987. This matter arises to the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, that in pertinent part granted increased (10 percent) schedular ratings for both knees. In August 2009, March 2011, and October 2012, the Board remanded the case for further development. The October 2012 Board decision adjudicated all other remaining appeals. During the appeal period, the diagnosis of the service-connected bilateral knee disability has changed. The Board has therefore re-characterized these disabilities on page 1 of this decision. FINDINGS OF FACT 1. The medical evidence does not demonstrate a requisite distinct time period in which the range of motion of the right knee changed so as to warrant a staged rating. 2. The right knee disability has been manifested throughout the appeal period by pain-free limitation of flexion to no worse than 75 degrees and pain-free limitation of extension to no worse than 30 degrees. 3. The left knee disability has been manifested throughout the appeal period by pain-free limitation of flexion to no worse than 80 degrees and pain-free limitation of extension to no worse than zero degrees. 4. Lateral instability or subluxation of either knee is not shown. CONCLUSIONS OF LAW 1. The criteria for a schedular rating greater than 10 percent for right knee limitation of flexion are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321 (b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260 (2013). 2. The criteria for a separate 40 percent schedular rating for right knee limitation of extension are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321 (b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5261 (2013). 3. The criteria for a schedular rating greater than 10 percent for left knee limitation of flexion are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321 (b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. Upon receipt of a substantially complete application for benefits, VA must notify the claimant 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. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Regarding the claims for higher bilateral knee disability ratings, VA's duty to notify was satisfied by letter sent to the claimant in October 2006. The letter addressed all of the notice elements and was sent prior to the initial unfavorable RO decision. VA's duty to assist in developing the case was also met. The service treatment records are in the claims file. All pertinent VA and private treatment records have been obtained and associated with the file. The claimant has undergone VA examinations at various times with respect to the issues on appeal and the examination reports and opinions are adequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has been provided a hearing. Accordingly, the Board finds that VA's duty to assist in developing the claim has been met. 38 C.F.R. § 3.159(c) (4). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (hereinafter: the Court) has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination, including during flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 38 C.F.R. § 4.59 addresses painful motion. A portion of § 4.59 states: The intent of the 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (applicable provisions of law and regulation should be addressed when they are made "potentially applicable through the assertions and issues raised in the record"). Burton v. Shinseki, 25 Vet. App. 1 (2011). Where an increase in disability is at issue, the present level of disability, rather than remote history, is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Degenerative arthritis (hypertrophic or osteoarthritis) when established by X-ray findings is rated on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.). 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, a 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbation. A 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note (1) The 20 percent and 10 percent ratings based on X-rays will not be combined with ratings based on limitation of motion. Note (2) The 20 percent and 10 percent ratings based on X-rays will not be used in ratings listed under diagnostic codes 5013-5024. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). In October 1987, shortly after the Veteran retired from active military service, the RO granted service connection for the right knee and left knee and assigned noncompensable ratings under Diagnostic Code 5299-5257. The bilateral knee disabilities were characterized as "extensor mechanism malalignment with patellar tendinitis." In October 2006, the Veteran requested re-evaluation of his bilateral knee disabilities. January 2007 VA knee X-rays were normal. A January 2007 VA compensation examination report mentions knee pains when climbing stairs and when sitting for long periods. A February 2007 VA compensation examination report reflects that the Veteran was working full-time in computer work. The right knee's range of motion was from 30 to 75 degrees, with no laxity found. Moderate pain prevented the right knee from fully extending. The left knee flexed and extended between zero and 80 degrees. The examiner noted moderate pain on movement of each knee that would cause an undetermined amount of additional functional impairment. In fact, a DeLuca examination for increased disability on repetitive use was precluded, "...because he had too much pain." Flare-ups of pain were mentioned, however. In a March 2007 rating decision, the RO granted 10 percent ratings for each knee effective October 2, 2006, and recoded each knee under Diagnostic Code 5299-5260. In a March 2007 notice of disagreement, the Veteran argued that neither the Deluca tenets nor lateral instability had been addressed by the examiner. A June 2007 VA compensation examination report does not address the knees, but does mention that the Veteran received no VA medical care. His current job required him to sit at a keyboard. Private medical reports received in April 2009 reflect periodic private examinations. Reports dated in 2005 and later mention that the Veteran had no joint or muscle pain, while reports dated in 2008 and later do mention joint and muscle pains. In April 2009, the Veteran testified before the undersigned at a video-conference hearing that his knees caused problems on stairs and have caused him to fall. He testified that the right knee was worse than the left. He testified that he could not lift heavy objects because of knee pains. He recalled that he had not taken any pain medication prior to the VA examination. At the hearing, the Veteran's representative added that the Veteran's knees had worsened since the prior VA examination. "...they've deteriorated..." the representative stressed. A September 2009 VA compensation examination report reflects that the Veteran had difficulty standing over 10 minutes or walking more than one block. Sitting long periods was also painful. There was pain along the joint lines of each knee joint. The Veteran mentioned that he had cortisone injections into each knee. He denied frank locking, catching, or instability. Range of motion was to 130 degrees of flexion, bilaterally. Extensions were full. Lateral instability was not found. Mild crepitus was noted. The patellae tracked slightly out of alignment by 9 degrees, but were considered to be within normal limits. X-rays showed mild patellar tilt and slight narrowing of the lateral patellofemoral compartments. The examiner explained that the Veteran's knee pains were consistent with a diagnosis of patellofemoral arthritis, which represented the current service-connected bilateral knee disability. A May 2011 VA compensation examination report reflects that the Veteran retired from working in 2008 due to his age. The report does not address the knees. A March 2013 VA compensation examination report reflects that the diagnosis was bilateral extensor mechanism misalignment with patellar tendonitis. The examiner did not explain why that diagnosis, which in September 2009 was found to be no longer valid, was for application again. Both knees had similar painful symptoms and flare-ups of pain. The knees were painful 6 to 7 days per week. Right knee range of motion was to 90 degrees of flexion. Pain began at 90 degrees. Extension was to zero degrees and there was no evidence of hyperextension of the right knee. Left knee flexion was to 110 degrees, but pain began at 100 degrees. Extension was to zero degrees. The Veteran was able to repeat the above range of motion tests three times. At the third test, right knee flexion was to 90 degrees and left knee flexion was to 110 degrees. There remained no evidence of hyperextension. The examiner speculated that on repetitive testing there was some additional range of motion lost due to pain. Pain was also detected at the joint lines, bilaterally. Leg muscles were at full strength and laxity of either knee joint in any plane was not found. Bilateral medial tibial stress syndrome, also called shin splints, was found. The examiner noted that greater ranges of motion were observed when the Veteran dressed after the examination. The Veteran reported that he occasionally used a cane to assist in walking. The examiner stated (erroneously) that no imaging study of either knee had been performed. This is erroneous because September 2009 VA X-rays showed mild patellar tilt and slight narrowing of the lateral patellofemoral compartments. The examiner felt that the knee disability would not preclude working, but also concluded that the bilateral knee disability would impact the Veteran's ability to work, as he had reported that he occasionally had to get up from his desk, because of his knees. Each knee has been rated 10 percent disabling for the entire appeal period under Diagnostic Codes 5299-5260. Under Diagnostic Code 5260, limitation of flexion of the leg at the knee (normal being to approximately 140 degrees) will be rated as follows: flexion limited to 15 degrees is 30 percent. Flexion limited to 30 degrees is 20 percent. Flexion limited to 45 degrees is 10 percent. Flexion greater than 45 degrees is not compensable. 38 C.F.R. §§ 4.71 Plate II, 4.71a, Diagnostic Code 5260 (2013). When rating a knee joint, other rating considerations arise. Under Diagnostic Code 5257, slight knee disability due to instability or subluxation warrants a 10 percent rating. Moderate knee instability warrants a 20 percent rating and severe instability warrants a 30 percent rating. 38 C.F.R. §§ 4.71, Plate II, § 4.71a, Diagnostic Code 5257 (2013). Where a Veteran has both a limitation of flexion and a limitation of extension of the same lower leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VA's General Counsel held that these separate ratings should each take into consideration any additional functional loss due to pain under 38 C.F.R. § 4.40 and DeLuca, and that these separate ratings do not amount to pyramiding under 38 C.F.R. § 4.14. VAOPGCPREC 9-2004. Limitation of extension of the leg at the knee (normal extension being to approximately 0 degrees) will be rated as follows: Extension limited to 45 degrees is 50 percent. Extension limited to 30 degrees is 40 percent. Extension limited to 20 degrees is 30 percent. Extension limited to 15 degrees is 20 percent. Extension limited to 10 degrees is 10 percent. Extension limited to 5 degrees is 0 percent. 38 C.F.R. §§ 4.71 Plate II, 4.71a, Diagnostic Code 5261 (2013). The four VA compensation examinations of the knees discussed above were performed over a six-year period and yielded some widely varying ranges of motion. The first issue for resolution is whether the facts and circumstances of this case suggest that staged ratings (as discussed in Hart v. Mansfield, 21 Vet. App. 505, 510 (2007) should be considered, or, alternatively, whether the Board should follow 38 C.F.R. § 4.2 and reconcile the variances in reported range of motion into a consistent picture that accurately represents all elements of the disability. See 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the rating may accurately reflect the elements of disability present."). In Hart, the Court held that staged ratings could be assigned where the evidence demonstrated distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. In this case, although the ranges of motion varied from examination to examination, the medical evidence does not demonstrate the requisite distinct time period in which the range of motion changed so as to warrant a staged rating. 38 C.F.R. § 4.2 also cautions that different examiners will not describe the same disability in the same language. Thus, changes in the reported pain-free range of motion are expected where multiple examiner have measured the ranges of motion. Finally, along with expected variations in examination results due to different examiners, the Veteran competently and credibly testified that he had taken no pain medication prior to the February 2007 VA examination. In contrast, the September 2009 VA examination report reflects that the Veteran had been given cortisone injections in each knee prior to that examination. Thus, the September 2009 and later examination reports show greater pain-free ranges of motion, albeit due to cortisone. Finally, with respect to whether either knee had improved in usefulness during the appeal period, during the hearing, the Veteran's representative stressed that the knees have actually worsened and deteriorated since the February 2007 VA examination. Reconciling these relevant facts into a consistent picture that accurately represents all elements of the disability (including additional disability due to the DeLuca tenets), and resolving any remaining doubt in favor of the Veteran, the facts reflect that: (1) the right knee disability has been manifested throughout the appeal period by pain-free limitation of flexion that has not been shown to be worse than 75 degrees and pain-free limitation of extension to no worse than 30 degrees; and (2) the left knee disability has been manifested throughout the appeal period by pain-free limitation of flexion to no worse than 80 degrees and pain-free limitation of extension to no worse than zero degrees. Lateral instability or subluxation of either knee is not shown. Comparing these manifestations with the criteria of the rating schedule and noting that the RO has already assigned 10 percent ratings under Diagnostic Code 5260 for painfully limited flexion of both knees, the criteria for schedular ratings greater than 10 percent under Diagnostic Code 5260 are not more nearly approximated for either knee. This is because limited flexion to 30 degrees, or other comparable functional impairment, has not been more nearly approximated. These 10 percent ratings take into account any additional functional impairment due to painful motion and flare-ups. However, according to the February 2007 VA compensation examination report, the criteria for a separate 40 percent schedular rating under Diagnostic Code 5261 for right knee limited motion in extension to 30 degrees are more nearly approximated. This separate 30 percent rating also takes into account any additional functional impairment due to painful motion on extension, including during flare-ups. Assignment of a separate 40 percent rating for right knee limited motion in extension does not violate the amputation rule. According to that rule, the combined rating for a disability shall not exceed the rating for the amputation at the elected level, were amputation to be performed. 38 C.F.R. § 4.68 (2013). For example, the combined evaluations for a defective knee-stump amputation shall not exceed a 60 percent evaluation, according to 38 C.F.R. § 4.71a, Diagnostic Code 5163. The rating granted above does not violate this rule. After considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against schedular ratings greater than 10 percent for limited motion in flexion of either knee. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. A schedular disability rating greater than 10 percent for limited motion in flexion of either knee must therefore be denied. After considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise concerning a separate schedular rating for limitation of extension of the right knee. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. A separate 40 percent schedular rating for right knee limitation of flexion will therefore be granted. Extraschedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for her service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has stressed that consideration of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. Moreover, in Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (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 extra-schedular disability rating must be in the interest of justice. Id, at 1368. Additionally, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the claimant reported that he retired from working in 2008 due to other reasons. The record does not reasonably raise the question of unemployability, nor has the claimant raised this issue. In this case, the established schedular criteria have not been shown or alleged to be inadequate to describe the severity and symptoms of the claimant's disability; the case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and, there is no evidence that an extra-schedular disability rating would be in the interest of justice. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). ORDER An increased schedular rating for right knee limitation of flexion is denied. A separate 40 percent schedular rating for right knee limitation of extension is granted, subject to the laws and regulations governing payment of monetary benefits. An increased schedular rating for left knee limitation of flexion is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs