Citation Nr: 1334827 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-18 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for right chondromalacia patella, lateral release residuals from August 15, 2009 to September 22, 2010. 2. Entitlement to an initial disability rating in excess of 10 percent for right chondromalacia patella, lateral release residuals from September 23, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1999 to August 2009. This case comes to the Board of Veterans' Appeals (Board) on appeal from a October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The issue of entitlement to a disability rating higher than 10 percent for right chondromalacia patella, lateral release residuals from September 23, 2010, forward is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Regarding range of motion findings for the period from August 15, 2009 to September 22, 2010, the Veteran's right knee extension has not been limited to 10 degrees and his right knee flexion has not been limited to 45 degrees or less. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for right chondromalacia patella lateral release residuals, have not been met from August 15, 2009 to September 22, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45.4.71a, Diagnostic Codes 5019, 5260, 5261 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon VA's receipt of a claim for veterans' benefits, the Veterans Claims Assistance of Act of 2000 (VCAA) imposes on VA: (1) a duty to notify and (2) a duty to assist. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). As discussed below, VA complied with both these duties. The duty to notify requires VA to notify claimants of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) the VA will seek to provide; and (3) the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (citing 38 U.S.C.A. § 5103(a)); 38 C.F.R. § 3.159(b)(1). VA must also notify a claimant that a disability rating and an effective date for the award for benefits will be assigned if service connection is awarded. Id. Notice must be provided before an initial unfavorable decision on a claim by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Here, VA fulfilled its duty to notify by the sending the Veteran a letter, dated in June 2009, before the RO adjudicated his claim, that notified him of the information detailed above. In any event, the Veteran has not alleged any prejudice regarding VA's duty to notify, and the Board finds none. See Shinseki v. Sanders, 556 U.S. 396 (2009) (stating that the burden of showing harmful error rests with the party raising the issue). Moreover, the Board observes that the Veteran has appealed the propriety of the initially assigned rating for his chondromalacia patella, lateral release residuals from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003. In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson at 490. Here, the Veteran's claim of service connection for chondromalacia patella, lateral release residuals was granted and an initial rating was assigned in the rating decision on appeal. Therefore, as the Veteran has the initially assigned rating, no additional notice is required because the purpose that the notice is intended to serve has been fulfilled. The duty to assist requires VA to help claimants develop their claims by: (1) obtaining evidence such as treatment records and other relevant evidence; and (2) providing a medical examination if warranted based on the factors set forth in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, VA obtained the Veteran's service treatment records (STRs) and VA treatment records. Initially, VA had difficulty obtaining the STRs. Moreover, it was noted that, because the Veteran had served as a military recruiter, he did not have a "traditional set" of STRs. However, the Veteran has informed VA that he thinks all of his STRs are in VA's possession and that he does not have anything else to submit in support of his claim. As part of its duty to assist, VA also provided the Veteran examinations in July 2009 and in September 2010. As will be explained in more detail in the merits section below, the medical evidence of record is adequate. In addition, the Veteran was provided an opportunity to set forth her contentions during the hearing before a Decision Review Officer (DRO). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. During the hearing, the DRO identified the single issue on appeal. Also, information was solicited regarding the nature of her argument and the DRO clarified the evidence necessary to establish entitlement the benefit sought. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. Id. at 497. Moreover, the hearing discussion did not reveal the existence of any available pertinent evidence that had not been submitted. As such, the Board finds that, consistent with Bryant, the undersigned DRO complied with the duties set forth in 38 C.F.R. 3.103(c)(2). The Veteran does not identify and the record does not indicate any additional pertinent evidence that is necessary to fairly adjudicate the claim. Therefore, the Board finds that the claim is fully developed and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claim Disability ratings are determined by applying the criteria found in VA's Schedule for Rating Disabilities (Schedule), 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 (2012). The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If a disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all findings specified. However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In cases where a veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to determine if the evidence warrants the assignment of different ratings for different periods of time during these claims, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In deciding a claim, the Board must consider all information and lay and medical evidence of record. The Board must provide reasons and bases to support its decision. However, the Board need not discuss every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance of positive and negative evidence, i.e., when the evidence is in a state of "equipoise," regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b) (West 2002 & Supp. 2012). The Veteran was granted service connection for a right chondromalacia patella, lateral release residuals with a 0 percent rating, effective August 15, 2009. The rating was subsequently increased to 10 percent, effective August 15, 2009. The Veteran contends that the 10 percent rating does not properly compensate him for his right knee disability. The Veteran states that he cannot squat, jump off things, cross his legs, and when he bends to pick something up, he has to keep his right leg straight and bend his left knee. He further states that inflammation and swelling is present even without use of his knee. The Veteran reports that the pain in his right knee, lack of weight bearing, and his inability to squat prevent him from doing jobs that he has done in the past. Moreover, he complains that weight bearing and squatting were not part of his VA examinations. The Veteran underwent a compensation and pension (C & P) examination of his right knee in July 2009. The report of that examination shows that the examiner reviewed the claims file, medical records, and interviewed the Veteran in conjunction with the physical examination. Moreover, the Veteran's complaints were recorded in the report of the examination. The Board, therefore, finds this examination adequate upon which to base a decision with regard to the Veteran's claims. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once the VA undertakes an effort to provide an examination to develop a claim, even if not statutorily obligated to do so, the VA must ensure the examination provided is adequate). In the examination report, the examiner noted that the Veteran had a right knee arthroscopic release in October 2006, that there was grade 2 chondromalacia in the right retropatellar area, that the lateral release cured the sharp pain, but that the Veteran had lost mobility. The Veteran informed the examiner that his knee was progressively worse and that his kneecap is loose all the time. Summary of joint symptoms indicated pain and stiffness, but no deformity, instability, giving way, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking, effusions, symptoms of inflammation, or flare-ups of joint disease. On examination, gait was normal, there was no crepitation, mass behind the knee, clicks or snaps, grinding, instability, patellar abnormality, meniscus abnormality, abnormal tendons or other knee abnormalities. Range of motion for flexion was 0 to 135 degrees with no objective evidence of pain following repetitive motion or additional limitations after three repetitions of range of motion. Right knee extension was normal, i.e., to 0 degrees. X-rays views of the knee were noted to have a normal impression. At his RO hearing before Decision Review Officer (DRO) in August 2010, the Veteran testified that his right knee caused him constant pain and swelling, that he has trouble with kneeling and squatting, that he has difficulty climbing stairs, and that the knee brace he wears limits his range of motion. The Veteran complained that weight bearing tests were not part of his C & P examination. He further testified that any weight bearing activity, such as walking, causes his knee to give way. The Veteran underwent a second C & P examination of his right knee in September 2010. The report of that examination shows that the examiner reviewed the claims file, medical records, and interviewed the Veteran in conjunction with the physical examination. Moreover, the Veteran's complaints of weight bearing activity, squatting, pivoting actions, swelling, pain, and popping of the knee were recorded in the report of the examination. The Board finds this examination adequate upon which to base a decision with regard to the Veteran's claims. Barr, 21 Vet. App. at 311-12. The report of the examination reveals that the examiner found the Veteran credible and that his subjective complaints matched the objective findings. Summary of joint symptoms indicated pain and giving way, but no locking, effusions, or flare-ups of joint disease. Episodes of dislocation or subluxation were noted to occur "daily or more often." There were no constitutional symptoms or incapacitating episodes of arthritis. Standing limitation and functional limitation on walking were described as follows: "able to stand more than 1, but less than 3 hours" and "able to walk 1/4 mile. The Veteran's frequency of use of a brace was noted to be intermittent, occasional. On examination of the Veteran's right knee, the examiner found that there was tenderness, crepitation, and patellar abnormality, which was identified as "subpatellar tenderness." However, there were no bumps consistent with Osgood-Schlatter's disease, mass behind the knee, clicks or snaps, grinding, instability, meniscus abnormality, abnormal tendons or bursae, or other knee abnormalities. Gait was normal. There was no evidence of abnormal weight bearing or inflammatory arthritis. Range of motion for flexion was 0 to 140 degrees with objective evidence of pain following repetitive motion, but no additional limitations after three repetitions of range of motion. Right knee extension was normal, i.e., to 0 degrees. X-rays of the right knee revealed mild degenerative changes about patellofemoral articulation, but no fracture or subluxation was seen. The examiner diagnosed right knee "pat-fem arthrosis." The examiner noted that the Veteran's right knee condition had significant effects on his usual occupation. The knee condition's impact on occupational activities were decreased mobility, pain, an inability to get down on one knee due to pain, and relying on co-workers to lift things for the Veteran. As to how the condition affected the Veteran's usual daily activity, the examiner noted a severe effect on exercise, sports, and recreation; a moderate effect on chores; a mild effect on travelling and dressing; but no effect on shopping, feeding, bathing, toileting, grooming, and driving. In his appellate brief to the Board, the Veteran's representative contends the symptomatology associated the right knee disability presents a greater of impairment than the currently assigned 10 percent would indicate and that the objective evidence in the record supports a conclusion that the degree of disability more closely approximates the required criteria of the next higher evaluation. In addition, the Veteran's representative points out that the Veteran continues to assert that his right knee pain continues to worsen and that his range of motion has also worsened. The representative asserts that the evidence supporting assignment of the next higher rating is at least in equipoise. The Veteran's right chondromalacia patella, lateral release residuals is evaluated under Diagnostic Code 5260-5019, limitation of flexion of the leg and bursitis. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, a noncompensable evaluation is warranted when flexion is limited to 60 degrees; a 10 percent evaluation is warranted when flexion is limited to 45 degrees. A 20 percent evaluation is warranted when flexion is limited to 30 degrees. A 30 percent evaluation is warranted when flexion is limited to 15 degrees. Under Diagnostic Code 5261, a noncompensable evaluation is warranted when extension is limited to 5 degrees; a 10 percent evaluation is warranted when extension is limited to 10 degrees; a 20 percent evaluation is warranted when extension is limited to 15 degrees; a 30 percent evaluation is warranted when extension is limited to 20 degrees; a 40 percent evaluation is warranted when extension is limited to 30 degrees; a 50 percent evaluation is warranted when extension is limited to 45 degrees. Normal range of motion of the knee is 0 to 140 degrees of extension to flexion. 38 C.F.R. § 4.71a, (2013). The VA General Counsel has issued a precedential opinion holding that "separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg." See VAOPGCPREC 9-2004 (September 17, 2004). The Board must also consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; see Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 (2013). As detailed above, the range of motion findings made during the period in question, extending from August 15, 2009 to September 22, 2010, have never technically met the criteria for a 10 percent rating under codes 5260 or 5261, as the Veteran's right knee extension has never been limited to 10 degrees and there is no clinical evidence on file showing that his right knee flexion has ever been limited to 45 degrees or less. In fact, range of motion findings over this period fail to reveal even compensable limitation of motion. Essentially, it appears that the 10 percent evaluation for chondromalacia patella and patellofemoral pain syndrome assigned during this time period is based on consideration of 38 C.F.R. §§ 4.40, 4.45 and the factors discussed in DeLuca. Upon consideration to the examination reports, and the Veteran's complaints of pain and functional impairment, the Board finds no basis for assigning an evaluation in excess of 10 percent for the appeal period from August 15, 2009 to September 22, 2010 under 38 C.F.R. §§ 4.40, 4.45 and with consideration of the DeLuca factors. In this regard, painful motion has been shown and documented on range of motion testing. Specifically, the September 2010 examiner noted objective evidence of pain following repetitive motion. However, the extent of the limitation of motion shown was still non-compensable in degree. In turning to the remaining Diagnostic Codes, the Board notes that a 30 percent disability rating under Diagnostic Code 5256 would not apply in this case because the pertinent medical evidence of record has not shown that there is ankylosis of the right knee. Diagnostic Code 5257 does not apply as both examinations revealed no instability or subluxation. Moreover, X-rays of the September 2010 examination showed no fracture or subluxation. With regard to Diagnostic Code 5258 (rating criteria for dislocation of semilunar cartilage with frequent episodes of locking, pain and effusion into the joint), neither examination report indicates dislocation of semilunar cartilage. The Board notes that a separate rating under Diagnostic Code 5259 (removal of cartilage, semilunar, symptomatic) is not for consideration as the Veteran has not had removal of semilunar (meniscal) cartilage. Diagnostic Code 5262 does not apply because the evidence does not show any impairment of the tibia and fibula. The Veteran would not be entitled to a higher rating under 5263 (genu recurvatum) because maximum available is 10 percent. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his right knee disability, recognizing that lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). To this extent, lay statements of symptoms, history, treatment and impairment associated with the right knee disability have been considered together with the probative medical evidence clinically evaluating the nature and severity of the pertinent disability symptoms. To the extent that the Veteran argues or suggests that the clinical data supports an increased rating in excess of what has been assigned he is not competent to make such an assertion. See Barr 21 Vet. App. at 303; Bruce v. West, 11 Vet. App. 405, 410-11 (1998). His statements are outweighed by the more probative VA examinations in July 2009 and September 2010. The VA examination reports are the most probative evidence as they were based on physical examinations and they provide sufficient information so the Board could render an informed determination. The Board has also considered whether referral is warranted for a rating outside of the schedule. The United States Court of Appeals for Veterans Claims (Court) clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or 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 Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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. In this case, there has been no showing that the Veteran's disability picture for his right knee disability could not be contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned ratings adequately describe the severity of the Veteran's symptoms for this disability during the period of appeal, namely, pain and limitation of motion. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's right knee disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. Thun, 22 Vet. App. at 111. Finally, to the extent that the Veteran's statements that his right knee disability prevent him from doing jobs that he had done in the past raise a claim of total disability due to individual unemployability (TDIU), the Board finds that the evidence does not support entitlement to TDIU because by the Veteran's own admission, he is studying to be a teacher. In sum, for the period from August 15, 2009 to September 22, 2010 an evaluation in excess of 10 percent for chondromalacia patella and patellofemoral pain syndrome of the right knee is denied. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine as applicable. Gilbert, 1 Vet. App. 49, 53-56 (1990); 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to a disability rating higher than 10 percent for a right chondromalacia patella, lateral release residuals from August 15, 2009 to September 22, 2010 is denied. REMAND Unfortunately, a remand is required for the second issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2013). While the Board deems the examinations to be adequate, and the other evidence of record up until September 2010 to be sufficient, VA must obtain a new medical examination where the evidence indicates that the Veteran's disability may have worsened since the last medical examination and where such examination may be too remote in time to portray the current nature, extent, and severity of the disability on appeal. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Here, the Veteran's VA examination of his right knee disability was more than three years ago. Moreover, the Veteran contends that his knee pain and range of motion have worsened since that time. A review of the record shows that the Veteran has received care for his knee at VA facilities numerous times in the past, but there are no such VA medical records associated with the claims file or virtual claims file since the time of the September 2010 examination. This leads the Board to conclude that it is reasonable that there are likely more recent VA records concerning the service-connected right knee disability. Such records, if extent, may reveal the claimed worsening. The Board, therefore, shall remand this issue so that the RO/AMC for further development to assess the current nature and extent of the Veteran's right chondromalacia patella, lateral release residuals from September 23, 2010, forward. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the Veteran and his representative and ask them to specify all private and VA medical care providers who have treated him for right knee disorder. After the Veteran has signed the appropriate releases, the RO/AMC shall then attempt to obtain and associate with the claims file any records identified by the Veteran or his representative that are not already associated with the claims file, in particular any records of treatment or evaluation from the Boise VAMC, since September 2010. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. After completion of the above development, the RO/AMC shall schedule the Veteran for a VA orthopedic examination, if necessary, to assess the current nature and severity of his service-connected right knee disability. If an exam is ordered, the Veteran's claims file must be reviewed by the examiner in conjunction the examination, and he or she shall note such review and identify important information gleaned therefrom in an examination report. The examiner shall conduct all necessary testing, including range of motion studies. A clear rationale for all opinions and a discussion of the facts and medical principles involved must be provided in a legible report. However, if the requested opinion cannot be provided without resort to speculation, the examiner must so state and explain why an opinion cannot be provided without resort to speculation. 3. After completing all development deemed necessary, the RO/AMC shall then readjudicate the Veteran's claim for a right chondromalacia patella, lateral release residuals from September 23, 2010, forward. If the decision remains unfavorable, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs