Citation Nr: 1334058 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 12-27 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for arthritis of the right knee. 2. Entitlement to an initial rating in excess of 10 percent for arthritis of the left knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from July 1954 to December 1958. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's arthritis of the right knee is characterized by flexion to 115 degrees and full extension with pain. 2. The Veteran's arthritis of the left knee is characterized by flexion to 125 degrees and full extension with pain. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for arthritis of the right knee are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5260 (2013). 2. The criteria for an initial rating in excess of 10 percent for arthritis of the left knee are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The claim for increased ratings for arthritis of the knees arises from disagreement with the initial disability rating that was assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With respect to the duty to assist in this case, the Veteran's service treatment records, private treatment records, and VA treatment records have been obtained and associated with the claims file. The Veteran was also provided with multiple VA examinations, the reports of which have been associated with the claims file, in conjunction with his claim. The examiners provided well-reasoned rationales for their opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. II. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2013). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2013). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2013). Where an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. However, consideration of the appropriateness of "staged rating" is also required. Hart v. Mansfield, 21 Vet. App. 505 (2007). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is 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 there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent 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. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Under Diagnostic Code 5263, genu recurvatum, acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated, warrants a 10 percent evaluation. 38 C.F.R. § 4.71a. When a claim is denied as a result of an RO decision, failure to timely appeal within the prescribed one-year period renders the decision final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). An appeal consists of a timely filed Notice of Disagreement (NOD) in writing, and, after an SOC has been furnished, a timely filed substantive appeal. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200 (2012). The NOD must be submitted within one year after issuance of the rating action being appealed. 38 C.F.R. § 20.302 (2012). The law requires that a communication from a claimant contain certain information to constitute an NOD. Specifically, an NOD is defined as a written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination of an agency of original jurisdiction (here, the RO) and a desire to contest the result. While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201. Following the receipt of an NOD, the RO is obligated to undertake any indicated development or review, and if that does not resolve the disagreement, by either a grant or a withdrawal of the disagreement, it "shall prepare a statement of the case." 38 U.S.C.A. § 7105(d). It then becomes the responsibility of the claimant to complete the steps necessary to perfect an appeal, if that is his or her desire, by timely filing a "Substantive Appeal. 38 U.S.C.A. § 7105(a). In an April 2011 rating decision the RO granted service connection for arthritis of the knees and assigned separate 10 percent evaluations. The Veteran submitted a written statement in July 2011 that said he wished to file for an increase in his service-connected bilateral knee condition. This was treated as a claim for an increased rating rather than an NOD to the rating assigned in the April 2011 rating decision. The Board finds that even though the Veteran's statement did not mention the April 2011 rating decision, it can reasonably be construed as an NOD because it was expressing dissatisfaction with the assigned rating from that rating decision. Furthermore, the statement was submitted within a year of the rating decision, and was therefore timely. See 38 C.F.R. § 20.201. Accordingly, the current appeal is considered to have arisen from the April 2011 rating decision. The record shows that the Veteran's VA primary care provider wrote in October 2008 that the Veteran complained of bilateral knee pain with a "popping sensation" that the Veteran felt limited mobility. X-rays showed mild to moderate osteoarthritic changes. A private internist wrote in a February 2010 statement that on physical examination the Veteran had tenderness and obvious bony hypertrophy in both knees. VA treatment records from February 2010 state that x-rays of the knees were negative and that an MRI showed osteoarthritis and a medial meniscus tear, although it was not stated whether the MRI results were for one knee or were bilateral. At December 2011 VA nephrology treatment the Veteran complained of knee pain. The Veteran had a VA examination in February 2011 at which it was noted that his current treatment was Tylenol. He reported knee pain and did not have deformity, giving way, instability, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking episodes, effusions, symptoms of inflammation, or flare-ups. The Veteran said that he could stand for three to eight hours with short periods of rest and could walk for a quarter of a mile. He used a cane on a frequent basis. On examination gait was antalgic, but there was no evidence of abnormal weight bearing, loss of bone or part of a bone, or inflammatory arthritis. Both knees had crepitation and clicks or snaps, but there was no instability, patellar or meniscus abnormalities, abnormal tendons or bursae or other knee abnormalities. The examiner diagnosed the Veteran with bilateral joint arthritis and felt there were significant effects on his usual occupation due to problems with lifting and carrying due to pain. As to daily activities, the examiner also felt that the Veteran had severe limitations on exercise and was prevented from playing sports. At range of motion testing in March 2011 flexion of both knees was to 125 degrees and extension was to 0 degrees. There was no objective evidence of pain following repetitive motion or additional limitations after three repetitions of range of motion. The Veteran underwent another VA examination in August 2012 at which he did not report flare-ups that impacted the function of the knees or lower legs. Range of motion of the right knee was flexion to 115 degrees with pain beginning at 115 degrees and extension to 0 degrees with no evidence of painful motion. Left knee flexion was to 125 degrees with pain beginning at 125 degrees. Extension of the left knee was not indicated on the original examination report, and a September 2012 report addendum stated that it was to 0 degrees without pain. Range of motion of both knees was the same on repetitive-use testing, although the examiner also indicated that after repetitive use the Veteran had less movement than normal and pain on movement. Muscle strength and joint stability were normal upon testing, and there was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran used a cane to walk on a regular basis and he had never had knee surgery. The examiner did not feel that knee function was so diminished that amputation with prosthesis would equally serve the Veteran. There was no x-ray evidence of patellar subluxation or significant other diagnostic test findings or results. The examiner did not feel that the Veteran's knees impacted his ability to work. The Veteran wrote on his October 2013 VA Form 9 that his current disability "prohibited" some activities of daily living. The Veteran's knees have been rated separately as 10 percent disabling under Diagnostic Codes 5010 and 5260. There is no evidence demonstrating that the Veteran's service-connected arthritis of the knees meets the criteria for separate compensable evaluations under Diagnostic Codes 5260 and 5261 for limitation of flexion or extension. See VAOPGCPREC 9-2004. The examination results do not show they were limited to 45 degrees flexion or 10 degrees extension, as required for 10 percent evaluations. See 38 C.F.R. § 4.71a, DCs 5260, 5261. At their worst, flexion was limited to 115 degrees in the right knee and 125 degrees in the left knee and extension was to 0 degrees bilaterally, which is full extension. See 38 C.F.R. § 4.71, Plate II. As such, the range of motion in the Veteran's knees has exceeded the range of motion for even non compensable ratings, as flexion was not shown to be limited to 60 degrees and Veteran consistently demonstrated full extension in the knees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. In addition, evaluations greater than 10 percent for each knee are not available under Diagnostic Code 5010. See 38 C.F.R. § 4.71a. The evidence does not show that the Veteran has left knee ankylosis; recurrent subluxation or lateral instability; cartilage, semilunar, dislocated with frequent episodes of "locking," pain and effusion into the joint; cartilage, semilunar, removal of, symptomatic; impairment of the tibia and fibula; and genu recurvatum. Therefore, ratings under Diagnostic Codes 5256, 5257, 5258, 5259, 5262, and 5263 are not for consideration. See 38 C.F.R. § 4.71a. The next question is whether an additional rating should be given for functional loss due to pain under 38 C.F.R. § 4.40 (including pain on use or during flare-ups) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. These regulatory provisions must be considered in cases involving joints rated on the basis of limitation of motion. See De Luca v. Brown, 8 Vet. App. 202 (1995). 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). There is no showing that the functional loss of the Veteran's knees warrants a higher rating. At the August 2012 VA examination, flexion and extension measurements of the knees were the same on repetitive-use testing. Although the examiner also indicated that after repetitive use the Veteran had less movement and pain on movement, the loss of range of motion at the examination on repetitive use appears to have been minimal given that the recorded measurements did not decrease. The examiner did not did feel that there was weakened movement, excess fatigability or incoordination after repetitive use, and the Veteran did not report flare-ups that limited the function of the knee and/or lower leg. At the March 2011 VA examination there was no objective evidence of pain following repetitive motion and there were no additional limitations after three repetitions of range of motion. Therefore, evaluations in excess 10 percent for each knee are not justified under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca. The Board has also considered whether a referral for an extraschedular evaluation is warranted with regard to the Veteran's increased rating claims for arthritis of the knees. The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this 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 extraschedular consideration is required. See VAOGCPREC 6-1996 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology and provides for additional or more severe symptoms with regard to the Veteran's knee disabilities, than are currently shown by the evidence; thus, the Board finds that the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. Consequently, referral for extraschedular consideration is not warranted. The Board also has considered whether the Veteran is entitled to "staged" ratings for his service-connected arthritis of the knees. Based upon the record, at no time during the claims period have the disabilities on appeal been more disabling than as currently rated. Additionally, the Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. However, there must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In the instant case, while the March 2011 VA examiner felt that the Veteran would have problems with lifting and carrying, the record does not reasonably raise a new claim for a TDIU because it does not show that the Veteran would be unemployable due to arthritis of the knees. In addition, the August 2012 examiner felt that the Veteran's knees did not impact his ability to work The preponderance of the evidence is against the claim. There is no doubt to be resolved, and ratings greater than 10 percent for arthritis of each knee are not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER An initial rating in excess of 10 percent for arthritis of the right knee is denied. An initial rating in excess of 10 percent for arthritis of the left knee is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs