Citation Nr: 1334331 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 07-28 304 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for the service-connected degenerative changes of the right knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1970 to August 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2006 by the RO. In May 2011, the Board remanded this appeal for additional development of the record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal with the exception of the September 2013 post-remand brief. FINDINGS OF FACT The service-connected right knee degenerative joint disease is not shown to be manifested by an actual limitation of motion or functional loss due to pain that is productive of flexion being restricted to 30 degrees or extension restricted to 10 degrees. CONCLUSION OF LAW The criteria for the assignment of an initial rating in excess of 10 percent for the service-connected right knee degenerative joint disease are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a including Diagnostic Codes 5003, 5260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). An October 2005 VCAA letter explained the evidence necessary to substantiate the claim for service connection. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, a March 2006 VCAA notice letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO sent the second notice letter after initially deciding the Veteran's claim. The RO later cured this timing defect, however, by readjudicating these claims in a Supplemental Statement of the Case issued in August 2007. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). This appeal arises from a Notice of Disagreement (NOD) with the initial evaluation following the grant of service connection for right knee degenerative changes. This NOD does not give rise to additional duty to notify on the part of VA. Dingess/Hartman, 19 Vet. App. 473; 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement). With regard to the duty to assist, the claims file contains service treatment records and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). The Veteran underwent several VA examinations to evaluate the current severity of the service-connected right knee disability. The most recent VA examination was in August 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination reports provide detailed descriptions of the service-connected disability. The examination reports are deemed to be adequate for the purpose of rating of the service-connected disability in accordance with the applicable rating criteria. The Board is also satisfied as to the substantial compliance with its May 2011 remand directives. This included scheduling the Veteran for another VA examination, which he had in August 2011. Based on the foregoing, 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 his claim. II. Law and Regulation Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2011). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). 38 C.F.R. § 4.14 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). In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that "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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, staged ratings are not warranted. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. 38 C.F.R. §§ 4.10, 4.40, 4.45. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). III. Analysis The Veteran seeks an increased initial rating for his service-connected right knee disability, which has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260, the criteria for evaluating limitation of flexion. The Board notes that hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. 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. Here, the appropriate diagnostic codes for limitation of motion of the knee are Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 is applicable to limitation of flexion of the leg. A noncompensable rating is assigned when flexion is limited to 60 degrees. A 10 percent rating is assigned when flexion is limited to 45 degrees. A 20 percent rating is assigned when flexion is limited to 30 degrees. A 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Diagnostic Code 5261 is applicable to limitation of extension of the leg. A rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II (2012). The VA General Counsel held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (September, 2004). The VA General Counsel has also held that a claimant who has arthritis and instability of a knee 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 (July 1997); VAOPGCPREC 9- 98, (August, 1998). VA's General Counsel further explained that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In this regard, in applying Diagnostic Code 5003, the Court has held in the case of Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), 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, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." See also 38 C.F.R. § 4.59 (2012). Diagnostic Code 5257, recurrent subluxation or lateral instability is rated as 10 percent disabling if slight, 20 percent disabling if moderate, and 30 percent disabling if severe. 38 C.F.R. § 4.71a, DC 5257. The Board notes there are other pertinent diagnostic criteria for rating knee disabilities. However, these criteria do not allow for ratings in excess of 10 percent, or the objective evidence of record does not contain any of the relevant findings: ankylosis of the knee (rated under Diagnostic Code 5256); removal of semilunar cartilage (rated under Diagnostic Code 5259); nonunion or malunion of the tibia and fibula (rated under Diagnostic Code 5262); or genu recurvatum (rated under Diagnostic Code 5263). 38 C.F.R. § 4.71a. As such, ratings under these Diagnostic Codes are not applicable. Based on a careful review of the evidence of record, the Board finds that an increased initial evaluation for service-connected right knee degenerative joint disease on the basis of limitation of motion is not warranted. Initially, the Board notes that measurements taken at the VA examinations of record, which included the Veteran's pain following repetitive use, did not meet the criteria for a higher rating under Diagnostic Code 5260. At a June 2006 VA examination, the service-connected right knee disability was manifested by flexion performed to 130 degrees, with his pain beginning at maximum flexion. The Veteran had full extension. A private medical statement dated in March 2008 noted that the Veteran had constant pain in his knees most of the day and swelling and giving up of the knee sometimes. The pain in the knee was described as being aching and sharp. He also complained of pain in the leg and feet and was noted to have a long standing history of diabetes mellitus. The extremities had 1+ edema, and the right knee had swelling and a decreased range of motion. Flexion of the right knee was performed to 110 degrees. Extension was performed to -5 degrees. The prognosis was noted to be guarded due to "severe" arthritis of the right knee and swelling. In a June 2008 treatment note, a private physician indicated that the Veteran had an antalgic gait and was unable to heel and toe walk. It was noted that he had swelling and limitation of motion of the right knee in March 2008. In January 2008, it was noted that he mild neuropathy and morbid obesity that caused some limitation in the ability to ambulate. The X-ray studies were noted to have shown narrowing of the medial joint compartment and the patellofemoral joint space. At a December 2008 VA examination, the service-connected right knee disability was manifested by flexion performed to 80 degrees. The examiner indicated that the Veteran stopped movement when the pain started. He had full extension. At a May 2009 VA examination, the service-connected right knee disability was manifested by flexion performed to 95 degrees. His extension was to 0 degrees. At a December 2009 VA examination, the Veteran reported being unable to stand for more than a few minutes or walk more than a few yards. He also reported that he had nearly fallen. His right knee had flexion to 90 degrees. There was no objective evidence of pain following repetitive motion or additional limitations after repetitive motion testing. There was no instability found on examination. Right knee extension was normal. The VA examination in August 2011 noted an active range of motion of the right knee from 0 to 110 degrees on flexion with no objective evidence of pain with active motion on the right side. There was no objective evidence of pain following repetitive motion testing. The examination revealed no deformity or instability. There were no episodes of dislocation or subluxation, locking or effusion. The Veteran reported giving away and constant pain that was moderate to severe. He reported use of a cane or walker with standing limited to 10 minutes and walking limited to 100 feet. As noted, Diagnostic Code 5260 contemplates a noncompensable evaluation where there is limitation of knee flexion to 60 degrees, which is far exceeded by the 110 degrees of right knee flexion recorded in August 2011. The evidence of record does not establish that the service-connected right knee disability results in a limitation of flexion to 30 degrees, even with consideration of the Veteran's pain. Therefore, the Veteran is not entitled to an increased rating under Diagnostic Code 5260. The Veteran is also not entitled to a higher rating under Diagnostic Code 5261. His limitation for extension was full on the VA examinations of record. A separate rating is also not available for instability under Diagnostic Code 5257. Throughout the appeal period, the Veteran was noted to be using a cane or walker for ambulation. However, no instability of the right knee was found upon physical examination. The Board also finds that a disability rating higher than 10 percent is not warranted on the basis of functional loss due to pain. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Court held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2012). The objective clinical findings, however, do not serve to demonstrate additional functional impairment to warrant a higher rating for the service-connected right knee disability. Specifically, the August 2011 VA examinations found that the Veteran did not experience any additional limitations after repetitive use testing. The Board notes that, in a March 2010 written statement, the Veteran's sister, who was noted to be a registered nurse, noted that he was unsteady on his feet and had to use a cane to assist with ambulation. She added that there had been a change in the Veteran's personal hygiene and that he experienced edema of the knees, ankles and feet. To the extent that this statement suggests that the Veteran is experiencing increased disability involving both lower extremities, these manifestations are not shown to be related to the service-connected right knee disability per se. Significantly, on examination, the Veteran did not exhibit an actual limitation of flexion of the right knee, or related functional loss due to his pain, that would equate with flexion being restricted to 30 degrees or worse under Diagnostic Code 5260. Thus, there is no basis to identify a higher level of disability based on functional loss in this case. In sum, based on this record, the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the service-connected right knee disability. Thus, the claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert, 1 Vet. App. at 53. The Board has considered whether this case should be referred to the Director, Compensation and Pension Service, for extraschedular consideration in rating the service-connected right knee disability. The governing norm in such exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). As the service-connected right knee disability picture manifested by pain and limitation of motion are reasonably addressed by the currently assigned 10 percent rating, it is not shown to be exceptional or unusual so as to warrant referring this matter for extraschedular consideration. See 38 C.F.R. 3.321(b)(1). ORDER An increased, initial evaluation in excess of 10 percent for the service-connected degenerative changes of the right knee is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs