Citation Nr: 1334290	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  10-34 314	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to a rating higher than 10 percent for residuals of a left knee injury, including degenerative joint disease (i.e., arthritis).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

A. Dean, Associate Counsel



INTRODUCTION

The Veteran had active military service in the U.S. Air Force from May 1972 to August 1975 and from May 1982 to January 1984.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which increased the rating for the Veteran's left knee disability from 0 percent (i.e., noncompensable) to 10 percent retroactively effective from December 11, 2009, the date of receipt of his claim for a higher rating for this service-connected disability.  His appeal is for an even higher rating.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed he is seeking the highest possible rating for this disability, absent express indication to the contrary). 


FINDING OF FACT

The manifestations of the Veteran's left knee disability are post-traumatic arthritic pain and stiffness, including during daily flare ups, albeit still with flexion to no less than 50 degrees and no limitation of extension; he also does not have recurrent subluxation or lateral instability, anklyosis, dislocated semilunar cartilage, or impairment of the tibia and fibula.


CONCLUSION OF LAW

The criteria have not been met at any point during the pendency of this claim for a rating higher than 10 percent for this left knee disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.71a, Diagnostic Codes 5003, 5010, 
5256-5262 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") claims file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See id.  The analysis below therefore focuses only on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board addresses its reasons for rejecting evidence favorable to the claimant.

The Board must assess the credibility and weight of all relevant evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

I. The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), sets forth VA's duties to notify and assist a claimant in substantiating a claim for VA benefits.  The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence not of record that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court/CAVC) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Ideally, VCAA notice should be provided prior to an initial decision on a claim by the RO as the Agency or Original Jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if notice was not provided prior to initially adjudicating a claim, or if provided and it was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of the notice because the intended purpose of the notice is still preserved, not frustrated, since the Veteran is still given meaningful opportunity to participate effectively in the adjudication of his claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). 

In claims for increased ratings for disabilities that already have been determined service connected in years past, the Court has held that in order to satisfy the first notice element in an increased-rating claim, VA must notify the claimant that he needs to provide or request VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability at issue.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010) (Vasquez-Flores III); Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008) (Vasquez-Flores I), overruled in part sub. nom. Vasquez-Florez/Wilson v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009) (Vasquez-Flores II).  Further, the claimant must be notified that a disability rating will be determined by applying relevant Disability Codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent, i.e., noncompensable, to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment.  Id.  Finally, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  Id.  Except when VCAA notice as to how to substantiate a claim is not provided at all, it is the claimant's burden to show that he was prejudiced by any deficiency in the notice provided.  See Vazquez-Flores, 24 Vet. App. at 106-107.  And VA is not required to apprise him of alternative DCs or daily-life evidence, only instead provide what amounts to "generic" notice.

Here, prior to the April 2010 rating decision at issue, a January 2010 letter satisfied all notice elements under the VCAA.  It informed the Veteran of how VA generally evaluates service-connected disabilities, provided examples of the types of evidence he could submit in support of his claim, and notified him of his and VA's respective responsibilities in obtaining relevant records and other evidence on his behalf.  Accordingly, the duty to notify has been satisfied.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores, 24 Vet. App. at 97-103; Quartuccio, 16 Vet. App. 183.

VA's duty to assist under the VCAA includes helping the claimant obtain relevant records, including service treatment records (STRs) and other pertinent records, such as concerning evaluation he has received since service from VA and privately, as well as providing an examination or obtaining a medical opinion when necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

Here, the Veteran's STRs and post-service VA medical records have been obtained and associated with the claims file for consideration.  He has not identified any outstanding records that he wants VA to obtain or that he believes are relevant to his claim in terms of showing his entitlement to a greater level of compensation.  Therefore, the duty to assist him in obtaining pertinent records has been satisfied.  See 38 C.F.R. § 3.159(c).

The duty to assist also, as mentioned, includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the claimant's disability and such is relevant to the claim, a new VA examination must be conducted.  See 38 C.F.R. §3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.  Indeed, even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

Here, VA examinations of the left knee were performed in January 2010 and even more recently in February 2013.  The examinations are adequate for rating purposes, as the examiners reviewed the claims file for the history of this disability, examined the Veteran personally, and described his disability in sufficient detail to 

enable the Board to make a fully informed decision regarding its severity in relation to the applicable rating criteria.  D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  There are no apparent inconsistencies or ambiguities in the examination reports, and the claimant has not specifically challenged its adequacy or thoroughness, or the competence of the examiners.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-91.

The Veteran has not stated and there is no evidence indicating that there has been a material change in the severity of his left knee disability since he was last examined in February 2013.  See 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the mere passage of time since an otherwise adequate VA examination was performed.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995).  Accordingly, VA's duty to assist with respect to obtaining a VA examination has been met.  38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312.

In sum, VA's duty to notify and assist under the VCAA has been satisfied.  The Veteran has had ample opportunity to participate effectively in the development of this claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . must be considered prejudicial")).  Any defect in the notice or assistance provided will not affect the outcome of this claim or compromise the "essential fairness of the adjudication," and no such defect has been shown.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  To the contrary, he has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  Thus, any error in the notice or assistance provided was harmless, again, meaning nonprejudicial.  See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show the error was harmless by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) and 38 C.F.R. § 20.1102.

Accordingly, the Board may proceed with appellate review of this claim.

II. Legal Criteria

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

The evaluation of the same disability under various diagnoses is to be avoided, as this would contravene VA's anti-pyramiding regulation.  See 38 C.F.R. § 4.14.  However, this does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements.  In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.

The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995).

Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (The provisions of § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.).

A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added).  In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable under the applicable diagnostic code.  The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion.  See id.  Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating.  See id. at 43.

DC 5010 refers to arthritis, due to trauma (i.e., post-traumatic arthritis), substantiated by X-ray findings.  This code provides that consequent disability should be rated as degenerative arthritis under DC 5003.

Under DC 5003, degenerative arthritis (hypertrophic/osteoarthritis) in turn will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is warranted for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 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 but X-ray involvement of two or more major joints or minor joint groups, a 10 percent rating is assigned.  A 20 percent rating is assigned where the above is present as well as occasional incapacitating exacerbations.

DC 5003 indicates these 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion.  In addition, these ratings will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive.

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 VA General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, respectively, while cautioning that any such separate rating must be based on additional disabling symptomatology.  VAOPGCPREC 23-97, 62 Fed. Reg. 63, 604 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998).

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 as 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated as 20-percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated as 30-percent disabling.

These descriptive terms of "slight," "moderate," and "severe are not specifically defined in this DC.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence so that its decisions are "equitable and just."  38 C.F.R. §§4.2, 4.6.

The VA General Counsel also has held that separate ratings are permissible under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) for disability of the same joint.  VAOPGCPREC 9-2004 (September 17, 2004).

According to DC 5260, flexion of the leg limited to 60 degrees warrants a noncompensable (0 percent) disability rating; flexion of the leg limited to 45 degrees warrants a 10 percent disability rating; flexion of the leg limited to 30 degrees warrants a 20 percent disability; and flexion of the leg limited to 15 degrees warrants a 30 percent disability rating.


According to DC 5261, extension of the leg limited to 5 degrees warrants a noncompensable (0 percent) disability rating; extension of the leg limited to 10 degrees warrants a 10 percent disability rating; extension of the leg limited to 15 degrees warrants a 20 percent disability rating; extension of the leg limited to 20 degrees warrants a 30 percent disability rating; extension of the leg limited to 30 degrees warrants a 40 percent disability rating; and extension of the leg limited to 45 degrees warrants a 50 disability rating.

Other DCs relating to the knee are DC 5256 (ankylosis), DCs 5258 and 5259 (symptomatic dislocation and/or removal of semilunar cartilage), DC 5262 (impairment of tibia and fibula) and DC 5263 (genu recurvatum).  As noted below, however, these types of impairment are not shown to warrant application of these other codes.

III. Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013) and Schafrath, 1 Vet. App. 589, the Board has reviewed all of the evidence of record pertaining to the history of this service-connected left knee disability.  The Board has found nothing in the historical record that would lead to the conclusion that the existing 10 percent rating is inadequate.

A review of this record shows the Veteran received VA treatment for his left knee in September 2009, so just some 3 months prior to filing his increased-rating claim in December 2009.  In claims for increased ratings, so such as the one before the Board, the present level of disability is the primary concern and past medical reports do not take precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, in assessing the present level of disability, the relevant temporal focus is from one year immediately preceding the filing of the 
increased-rating claim, so, here, since September 2008, therefore inclusive of that VA treatment in September 2009.  See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  See also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) 

was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability).  If there have been occasions since when the disability has been more severe than at others, the rating must reflect this, that is to say, the rating must be "staged" to compensate the Veteran for this variance.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

When seen in September 2009, the Veteran reported that he sometimes had knee pain at night that caused difficulty sleeping, that he had pain getting up from a sitting position, and that he had pain when walking over rough terrain.  A physical examination of his knee indicated no swelling, effusion, or instability.  X-rays indicated some tricompartment degenerative changes with a mild medial joint space narrowing.  The diagnosis was degenerative joint disease.

He subsequently received additional treatment from VA from June 2010 to January 2013 for a number of medical complaints.  His treatment for his left knee disability appeared to be confined to prescription medication for knee pain.  There are no range-of-motion measurements or objective findings of instability or subluxation in these VA treatment records.

In January 2010, so in the interim, he was afforded a VA compensation examination for his left knee disability.  He reported symptoms of pain, weakness, stiffness, swelling, heat, redness, instability, giving way, fatigability, and lack of endurance.  His treatment at the time consisted of taking Ibuprofen (a pain medication), as needed, and using a knee brace and walking stick for stability.  He reported severe flare-ups at least once a month that lasted three or four days and were caused by walking at work or pushing a lawnmower.  He reported no surgeries, dislocations, inflammatory arthritis, prostheses, or neoplasms, but he did say his kneecap had "slipped off to the side."

On objective physical examination, the examiner noted flexion to no less than 55 degrees and no limitation of extension, so it was entirely normal.  The Veteran reported pain, fatigue, and weakness from the initial range-of-motion test, and the examiner confirmed the Veteran had painful motion, edema, tenderness, and guarding of movement.  The range-of-motion test was performed again for repetition with the same results for flexion and extension, and the Veteran again reported pain, fatigue, and weakness.  The examiner, however, stated that she could not determine, without resorting to speculation, whether any of the Veteran's reported symptoms caused additional functional loss.  She also noted that he had an antalgic gait and could not stand or walk for a prolonged period due to his left knee pain.  She did not order X-rays as the Veteran's arthritis already had been established.  Her diagnosis was left knee injury with early degenerative joint disease, residual patellar laxity.  She stated that she did not observe any instability of the joint.  She did note that the Veteran's symptoms had a moderate-to-severe effect on his usual occupation and daily activities.

That VA compensation examiner's findings were the reason the RO subsequently increased the rating for the Veteran's left knee disability from 0 to 10 percent in the April 2010 decision at issue.  In effect, although the Veteran's left knee flexion was limited to 55 degrees, which, according to DC 5260, would just have warranted continuance of the then existing 0 percent (noncompensable) rating, the fact that he had accompanying arthritic pain was reason enough to increase the rating for his left knee disability to the minimum compensable level of 10 percent.  As already explained, in application of DC 5003, which refers the rater to DC 5260, the Court has held that "painful motion of a major joint... caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating...."  See again Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (indicating this results from reading 38 C.F.R. § 4.59 in combination with DC 5003).  For the purpose of rating disability from arthritis, the knee is considered a major joint.  See 38 C.F.R. § 4.45(f).  With any form of arthritis, painful motion is an important factor of disability.  See id.  The intent of the Rating Schedule is to recognize painful motion with joint or particular pathology as productive of disability.  As also already explained, joints that are actually painful, unstable, or malaligned should be entitled to at least the minimum compensable rating for the joint, therefore special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.



But also to reiterate, in the case of Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011), the Court clarified its holding in Lichtenfels, explaining that the evaluation of painful motion as limited motion only applies to the evaluation of arthritis under DC 5003, as mandated by the express language in that provision, and only when limitation of motion is noncompensable under the applicable DC (here, DC 5260).  The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels and DC 5003, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion.

After continuing to maintain that his left knee disability had worsened, even since that January 2010 VA compensation examination, the Veteran was provided another VA compensation examination in February 2013 to reassess the severity of this service-connected disability.  He reported that his left knee gave out even walking on flat surfaces, and that he had flare-ups of pain and stiffness that occurred many times a day and lasted a few minutes up to an hour at a time.  He added that, during the flare-ups, he was unable to walk.

On objective physical examination, the examiner noted the Veteran had flexion to no less than 70 degrees and no limitation of extension, so the latter still was entirely normal.  The examiner also clarified that objective evidence of painful motion on flexion started at 50 degrees, and that there was no objective evidence of painful motion on extension.  The examiner noted the Veteran reported a lot of pain on the initial range-of-motion test and declined to do additional repetitions.  The examiner noted the following functional loss, impairment, or additional limitations of range of motion of the left knee after repetitive use:  less movement than normal; weakened movement; excess fatigability; pain on movement; swelling; disturbance of locomotion; and interference with sitting, standing and 
weight-bearing.  As for muscle-strength testing, the Veteran was observed to have active movement with gravity eliminated during his left knee flexion and extension; the strength in his right knee was noted to be normal.

The examiner indicated he was unable to perform joint-stability tests as the Veteran reported a lot of pain when the tests were attempted.  The examiner stated there was no evidence or history of recurrent patellar subluxation/dislocation, though.  He also noted the Veteran did not have "shin splints" (medial tibial stress syndrome), stress fractures, or any other tibial and/or fibial impairment; nor did he have any meniscal conditions, joint replacement or other surgical procedures, knee arthroscopy, or scars.  The Veteran reported using a knee brace for support and a walking stick for balance and support during walking.  The examiner surmised that, due to the Veteran's left knee disability, functional impairment was not so diminished that no effective function remains other than that which would be equally well served by an amputation with prosthesis.  See 38 C.F.R. § 4.68.  As far as the functional impact of the Veteran's left knee disability, the examiner explained that the Veteran can lift about 30 to 40 pounds, provided the lifting does not involve knee bending, and that he can lift about twice per day.  He can walk about 20 yards at one time, but during an 8-hour day he can walk an unlimited amount if he can stop every so often to rest and allow the pain to subside.  He is not limited in how long he can sit/stand at one time or in an 8-hour day, provided he can change positions every so often.

The examiner indicated the Veteran's diagnosis had not changed.  He reported that the Veteran's pain could significantly limit functional ability during flare-ups or when the joint was used repeatedly over a period of time, but that he could not express in terms of the degree of additional range-of-motion loss due to fatigue, weakness, or lack of endurance on use or during flare-ups.  He added that the major functional impact for the Veteran was pain.

For the reasons and bases already discussed, as summarized in Mitchell, even the results of that additional VA compensation examination do not provide the means to warrant again increasing the rating for the left knee disability.  The existing 10 percent rating, absent indication of greater functional loss on account of the pain, is the highest possible rating that may be assigned in the circumstances presented.


This 10 percent rating under DCs 5003-5260 concedes the Veteran has limited or painful motion of a major joint, that being his left knee.  It is indeed unfortunate that he apparently could not or was unwilling to tolerate the necessary additional (repetitive) range-of-motion testing required to determine whether he had an even greater level of consequent impairment, regrettably leaving the Board only to evaluate his disability based on the information that was provided.  To warrant a schedular rating higher than 10 percent for his left knee disability under DCs 5010 and 5003 for the arthritis, there would need to be X-ray evidence of involvement or two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  There is no such indication.  Moreover, a rating exceeding 10 percent also is not warranted under DC 5260, on referral, without evidence of limitation of flexion to 30 degrees or less, which also has not been indicated, again, even when considering the extent of the Veteran's pain.

He repeatedly has had entirely normal extension of this knee, to 0 degrees, so no limitation or restriction of the motion in this opposite direction to any extent, much less to the level required for a compensable or separate rating under DC 5261 or VAOGCPREC 9-2004, respectively.  See also 38 C.F.R. § 4.71, Plate II, indicating normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion.

As to rating his left knee disability under another rating code, the assignment of a particular DC is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.  Any change in a DC by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  In order to warrant a rating higher than 10 percent under a different DC or a separate rating, as examples there must be evidence of recurrent subluxation or lateral instability of the left knee causing "slight" or "moderate" or "severe" impairment (DC 5257), dislocated semilunar cartilage that results in frequent episodes of "locking," pain, and effusion into the joint (DC 5258), or malunion of the tibia and fibula with moderate knee or ankle disability (DC 5262).

But there is no suggestion the Veteran has the type of impairment contemplated by DCs 5258 and 5262, so they are inapplicable.

As concerning DC 5257, during his initial January 2010 VA compensation examination the Veteran complained of weakness, instability, and giving way of his left knee.  He added that he used a knee brace and walking stick for stability, and that his kneecap had "slipped off to the side."  However, after objective physical examination of this knee, although her diagnosis was left knee injury with early degenerative joint disease, residual patellar (i.e., kneecap) laxity, the VA examiner also explicitly indicated that she did not observe any instability of the joint.  And, unfortunately, during his more recent February 2013 VA compensation examination, the Veteran declined to perform the joint-stability tests and denied a history of recurrent patellar subluxation/dislocation.  Therefore, the Board finds that there simply is not enough evidence to show he experiences recurrent subluxation or lateral instability of this knee to in turn warrant assignment of a separate rating under DC 5257, see again VAOGCPRECs 23-97 and 9-98, or a higher rating under this DC.

There equally is no objective clinical evidence of any left knee ankylosis to warrant consideration of a higher rating under DC 5256.  Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].  While, as already conceded, there is no disputing the Veteran has some limitation of motion of his left knee, if only on flexion rather than additionally on extension, particularly on account of his pain, it cannot be said that his motion is so restricted even on flexion as to amount to ankylosis, which essentially contemplates absolutely no motion at all.

There also is no indication he has met the requirements for a rating higher than 10 percent at any time since one year prior to filing this increased-rating claim, so the Board cannot "stage" his rating either.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Accordingly, the preponderance of the evidence is against his claim, so it must be denied.

IV. Extra-Schedular Consideration

The Board also has considered whether the Veteran's claim should be referred for extra-schedular consideration.  See 38 C.F.R. § 3.321(b)(1) (2013).  The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the disability is inadequate.  38 C.F.R. § 3.321(b)(1).  See also Fisher v. Principi, 4 Vet. App. 57, 60 (1993); VA Adjudication Procedural Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c).  According to the VA regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

The question of an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).


As held in Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability.  Thun, 22 Vet. App. at 114.

Here, though, referral for extra-schedular consideration is unwarranted.  The Veteran's left knee disability is manifested by symptoms and functional impairment expressly addressed by the schedular rating criteria, including arthritis and consequent pain and its effect on his range of motion.  He does not have symptoms associated with his left knee disability that have been left uncompensated or unaccounted for in the assignment of his schedular rating.  See Thun, 22 Vet. App. at 115.  With regards to his functional impairment, including reported difficulties with prolonged standing and walking, these limitations are expected concomitants of a knee disability and thus fall within the province of the schedular criteria.  Indeed, DeLuca's express reference to 38 C.F.R. §§ 4.40, 4.45 and 4.59 accepts as much.  As noted in Thun, the rating criteria are averages and need not account for each individual circumstance in order to be adequate for evaluation purposes.  Rather, the disability must be "exceptional" or "unusual."  The Veteran has not described any functional impairment beyond what would reasonably be contemplated by the rating criteria.

But even going one step further, there also is no evidence that he has missed time from work or been hospitalized for his left knee disability, much less frequently.  So even if he managed to satisfy the first tier of the Thun test, he does not satisfy the second, so the third becomes moot.  See 38 C.F.R. § 3.321(b)(1).

Accordingly, a comparison of his left knee disability and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards."  Id.  Consequently, the available schedular evaluation is adequate to rate this disability.  In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely, whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization, much less, as mentioned, the third and final step of the inquiry.  See Thun, 22 Vet. App, at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was a marked interference with employment).  Nevertheless, as explained, such additional factors have not been shown either.  Therefore referral for extra-schedular consideration is not warranted.  See id.


ORDER

The claim of entitlement to a rating higher than 10 percent for the left knee disability is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs