Citation Nr: 1334186 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-24 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a rating in excess of 20 percent for left knee chondromalacia. 2. Entitlement to a rating in excess of 20 percent for right knee chondromalacia. 3. Entitlement to an initial rating in excess of 10 percent for left knee osteoarthritis. 4. Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis. 5. Entitlement to a total disability rating based upon individual unemployability (TDIU) as due to service connected bilateral knee disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active duty service from May 1969 to May 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut which, in pertinent part, denied the Veteran's claims for an increased rating for bilateral knee chondromalacia with osteoarthritis. An August 2011 statement of the case (SOC) granted a separate rating for osteoarthritis in each knee, effective September 23, 2010. The Veteran indicated in his August 2011 substantive appeal (VA Form 9) that he objected to all determinations made in the August 2011 SOC. When this case was previously before the Board in October 2012, it was remanded for additional development. The case is now before the Board for final appellate consideration. 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 left knee chondromalacia does not result in instability or malunion of the tibia and fibula. 2. The Veteran's right knee chondromalacia does not result in instability or malunion of the tibia and fibula. 3. The Veteran's left knee osteoarthritis does not result in limitation of flexion to 30 degrees, or limitation of extension to 10 degrees. 4. The Veteran's right knee osteoarthritis does not result in limitation of flexion to 30 degrees, or limitation of extension to 10 degrees. 5. The Veteran is precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for left knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260-5258 (2013). 2. The criteria for an evaluation in excess of 20 percent for right knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260-5258 (2013). 3. The criteria for an initial evaluation in excess of 10 percent for left knee osteoarthritis have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260-5003 (2013). 4. The criteria for an initial evaluation in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260-5003 (2013). 5. The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102 , 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). This appeal arises in part from the Veteran's disagreement with initial evaluations assigned for right and left knee osteoarthritis following grants 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). VA did advise the Veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law for knee osteoarthritis. The August 2011 SOC, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant law concerning the evaluation of osteoarthritis of the knees under Diagnostic Codes 5003, 5260 and 5261. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve an increased initial evaluation for osteoarthritis of each knee. With respect to the remaining issues, fully compliant notice was provided in an April 2010 letter in connection with an earlier claim for increased evaluations for chondromalacia of the right and left knees. The Board notes that this correspondence was sent only five months prior to the date of receipt of the Veteran's current claim for increased evaluations. Thus, the Veteran had actual knowledge of the information and evidence necessary to substantiate his increased evaluation claims. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In addition, the Veteran has been represented by a service organization during the entire appeal. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, records from the Social Security Administration (SSA), and the transcript of a February 2012 video conference hearing before the undersigned Veterans Law Judge. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. The Board finds that the development requested by the Board's October 2012 remand has been conducted. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA conducted examinations in April 2010, May 2011 and June 2013. 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 Board finds that the VA examinations conducted in this case are more than adequate for the claims on appeal. The 2010 VA examination did not include a review of the claims file. The 2011 VA examination included a review of medical records but not the claims file. The 2013 VA examination did include a review of the claims file. The Board points out that the evaluations were to assess the current levels of the Veteran's disabilities. In this regard, each examiner considered the Veteran's medical history, including his lay reports of his symptomatologies; described the Veteran's disabilities in sufficient detail; and fully described the functional effects caused by the Veteran's disabilities. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims on appeal. Legal Analysis With respect to the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). On appeals from the initial rating assigned with the grant of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). Further, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire histories of the Veteran's disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's right and left knee osteoarthritis is evaluated under Diagnostic Code 5260-5003. Under Diagnostic Code 5003, degenerative arthritis 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the diagnostic codes, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Diagnostic Code 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f) (2013). Under Diagnostic Code 5260, limitation of flexion to 45 degrees warrants a 10 percent evaluation, and limitation of flexion to 30 degrees warrants a 20 percent evaluation. Separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. In this regard, limitation of extension of a knee to 10 degrees warrants a 10 percent evaluation, and limitation to 15 degrees warrants a 20 percent evaluation. Diagnostic Code 5261. VA General Counsel has held that knee arthritis and instability may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. The Veteran's chondromalacia is evaluated under Diagnostic Code 5258. Dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint warrants a 20 percent evaluation. A higher evaluation is not provided. Diagnostic Code 5258. A 30 percent evaluation is warranted for impairment of the tibia and fibula consisting of malunion with marked knee or ankle disability. Diagnostic Code 5262. When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Chondromalacia Based on a through review of the record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent chondromalacia of the right knee or the left knee. The Veteran's right knee and left knee chondromalacia are each rated at the highest evaluation under Diagnostic Code 5258. Regarding limitation of knee motion, the Veteran's reduced motion is addressed by the evaluations for his right knee and left knee osteoarthritis, discussed below. The Rating Schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, since such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding. See Esteban, citing Brady v. Brown, 4 Vet. App. 203 (1993). Regarding instability and Diagnostic Code 5257, the April 2010 VA examination report provides that the Veteran had no laxity/instability with valgus force. A May 2011 VA outpatient treatment report notes that the Veteran's right lower extremity was stable to varus/valgus stress. The May 2011 VA examination found on physical examination there was no instability of either knee. The June 2013 VA examination found no evidence or history of recurrent patellar subluxation. Each knee had normal stability. Thus, compensation is not warranted for recurrent subluxation or lateral instability of either knee under Diagnostic Code 5257. There is no evidence of impairment of the tibia and fibula on either side, and thus neither knee disability warrants an evaluation under Diagnostic Code 5262. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Osteoarthritis Based on a through review of the record, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 10 percent for osteoarthritis of the right knee or left knee. As noted above, the Veteran is not entitled to compensation for recurrent subluxation or lateral instability of either knee under Diagnostic Code 5257, or impairment of the tibia and fibula under Diagnostic Code 5262. Turning to limitation of motion, an April 2010 VA examination provides that the Veteran's right knee range of motion was full passive from zero to 90 degrees without pain, to 100 with pain. Left knee range of motion was from zero to 90 degrees without pain, to 110 with pain. An April 2010 VA outpatient treatment report provides that the Veteran had right knee extension to -15 degrees, and flexion to 90 degrees. Left knee extension was to -10 degrees, and flexion was to 85 degrees. An October 2010 outpatient treatment report provides that the Veteran had bilateral range of motion from 5 to 90 degrees. The May 2011 VA examination found that the Veteran had bilateral flexion from zero to 100 degrees. Extension was normal bilaterally. There was objective evidence of pain with active motion bilaterally. A May 2011 VA outpatient treatment report provides that the Veteran's right knee active range of motion was from 10-100 degrees, limited by pain. There was crepitus with passive range of motion. The knee was ligamentously stable to varus/valgus stress. The June 2013 VA (Disability Benefits Questionnaire (DBQ)) examination found that the Veteran had right knee flexion to 120 degrees, and full right knee extension (zero degrees). Left knee flexion was to 130 degrees, and right knee extension was full (zero degrees). The Veteran was able to perform repetitive-use testing with three repetitions, with no additional limitation of motion in either knee. The examiner specified that the Veteran did not have additional limitation in range of motion of the knees following the repetitive-use testing. After testing, the Veteran did have less movement than normal, pain on movement, deformity, and interference with sitting, standing and weight-bearing bilaterally. The report provides that the Veteran did not report that flare-ups impacted the function of either knee and/or lower leg. In a July 2013 addendum, the examiner stated that there were no flare-ups reported in the DBQ. Pain, weakness, fatigability or incoordination would not significantly limit the Veteran's functional ability during flare-ups. The Veteran subjectively reported pain when the joint was used repeatedly over a period of time. This was not observed during the office visit. The examiner stated that there was insufficient evidence that would provide a reliable prediction of decreased functional ability during flare-ups or when the knees were used repeatedly over a period of time. Thus, the examiner stated that she was unable to predict the degrees of further functional loss or decreased range of motion. With respect to this opinion, the Board observes that a VA medical examination is not inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation. Jones v. Shinseki, 23 Vet. App. 382 (2011). Thus, while VA has a duty to assist a veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence. The Court in Jones held that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. In the present case, the examiner adequately explained that she could not provide a reliable prediction of decreased functional ability during flare-ups or when the knees were used repeatedly over a period of time because there was insufficient evidence. The forgoing evidence simply does not support an evaluation in excess of 10 percent for right or left limitation of flexion under Diagnostic Code 5260. The evidence also fails to support compensation for right or left limitation of extension under Diagnostic Code 5261. The limitation of extension of 15 degrees for the right knee noted in VA outpatient treatment report of April 2010 is an outlier which is outweighed by the numerous remaining findings of full extension. Although an April 2010 (left knee) and a May 2011 record (right knee) both show limitation of extension of 10 degrees, such a finding would not warrant a rating higher than the currently assigned 10 percent rating (or a separate rating) in light of the fact that the Veteran had noncompensable limitation of flexion at that time. The Board recognizes the Veteran's complaints of bilateral knee pain made during the VA examinations, while seeking treatment and during the hearing before the undersigned. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In this case, however, the Board finds that the effects of pain reasonably shown by the record to be due to the Veteran's right knee and left knee osteoarthritis are contemplated in the 10 percent evaluations under Diagnostic Code 5260-5003. The foregoing evidence simply does not show that pain has caused functional loss comparable to any of the criteria for an evaluation in excess of 10 percent discussed above. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, supra. In this regard, the Board finds it significant that the June 2013 VA examination found that the Veteran was able to perform repetitive-use testing with 3 repetitions, with no decrease in post-test range of motion results. The examiner specified that the Veteran did not have additional limitation in range of motion of the knee following the repetitive-use testing. The Board acknowledges that in the July 2013 addendum the examiner stated that because of insufficient evidence she was unable to predict the degrees of further functional loss or decreased range of motion. Nevertheless, she did clarify that pain, weakness, fatigability or incoordination would not significantly limit functional ability during flare-ups. She reiterated that the Veteran's subjective reports of pain on use were not observed during the examination. Additionally, the record contains no indication that the rating criteria are inadequate to rate the Veteran's knee disabilities. The foregoing evidence contains no suggestion that the rating criteria do not reasonably describe the Veteran's disability levels and symptomatologies. The Veteran describes pain, instability and limitation of motion. The rating criteria address these symptoms. Therefore, the Veteran's disability pictures are contemplated by the rating schedule, the assigned evaluations are adequate, and no referral for extraschedular consideration is required. See Thun v. Peake, 22 Vet. App. 111 (2008). As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; Ortiz, supra. TDIU A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). Where these percentage requirements are not met, entitlement to the benefit on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b) (2013). In determining whether the veteran is entitled to a TDIU rating, neither non-service-connected disabilities or advancing age may be considered. 38 C.F.R. § 4.19 (2013). The Veteran's service-connected disabilities are chondromalacia, right knee, evaluated as 20 percent disabling; chondromalacia, left knee, evaluated as 20 percent disabling; osteoarthritis, right knee, evaluated as 10 percent disabling; and osteoarthritis, left knee, evaluated as 10 percent disabling. The Veteran's combined disability rating is 50 percent. The basic schedular requirements for consideration of a TDIU rating have not been met. 38 C.F.R. § 4.16(a). Nevertheless, the Board finds that the record indicates that it is at least as likely as not that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. On a September 2008 VA Form 21-526, the Veteran stated that he had only completed 2 years of college. He had last worked as a driver from 1999 to 2003. A December 2008 SSA determination found that the Veteran was disabled as of August 2008. The primary diagnosis was fractures of lower limb, and the secondary diagnosis was osteoarthritis and allied disorders. A SSA Residual Functional Capacity Assessment (Assessment) identified the Veteran's past relevant work as chauffeur-handyman (DOT title of Home Assistant). The Assessment noted that the Veteran did not have the residual functional capacity to perform past relevant work as actually performed. It explained that the Veteran had a weight limit of 20 pounds and had to carry 50 pounds. The Assessment also noted that the Veteran did not have the residual functional capacity to perform past relevant work as generally performed in the national economy. The Veteran had light maximum sustained work capacity. His highest completed grade of school was 13 and he did not have education that would provide for direct entry into semi-skilled or skilled work. The June 2013 VA examination report provides that a total knee replacement posed significant risks, including death. The examiner stated that the Veteran's service connected knee disorders at least as likely as not precluded him from maintaining and securing physical but not sedentary type of work. In this regard, the report noted that the Veteran had problems with lifting and carrying . He had been employed as a "live in" companion for an elderly woman until she passed away. He then worked odd jobs and aggressively sought handyman and/or companion employment. An August 2013 VA orthopedic surgery attending note provides that the Veteran's history, physical examination and X-rays were reviewed. The Veteran currently had a great deal of pain and disability from his bilateral knee osteoarthritis. He had advanced, bone-on-bone endstage osteoarthritis on his knees. There was nothing that could be done to improve this situation except for total knee surgery for each knee joint. The VA physician, a Chief of Orthopedics, concluded that at this time the Veteran was completely disabled. In light of the conflicting medical opinions as to the Veteran's ability to engage in gainful employment, the Board finds that the evidence is evenly balanced. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a TDIU. ORDER A rating in excess of 20 percent for left knee chondromalacia is denied. A rating in excess of 20 percent for right knee chondromalacia is denied. An initial rating in excess of 10 percent for left knee osteoarthritis is denied. An initial rating in excess of 10 percent for right knee osteoarthritis is denied. A TDIU is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs