Citation Nr: 1335157 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-15 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from December 1984 to November 1993, and from November 2001 to December 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of August 2008 of the Albuquerque, New Mexico, Department of Veterans Affairs (VA) Regional Office (RO) that increased the Veteran's rating for his right knee disability from 10 percent to 20 percent. This claim was previously before the Board in April 2011. At that time, the Board denied the Veteran's claim for an increased rating for his service-connected hearing loss, and it remanded the claim for an increased rating for a right knee disability. The development ordered in the April 2011 has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2012, the Veteran requested an in-person hearing. At an informal conference at the RO, the Veteran and his representative agreed to have the Veteran undergo a new examination in lieu of a hearing. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The holding of Rice is inapplicable here, as the evidence of record shows that the Veteran continues to work for the postal service. FINDING OF FACT Degenerative joint disease of the right knee, though productive of pain and limited motion, does not result in flexion limited to 15 degrees or extension limited to 20 degrees. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.655, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5003, 5010, 5256-5263 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A March 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). In a November 2008 letter, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Following the issuance of this notice, the claim was readjudicated in an April 2009 statement of the case; the claim was most recently readjudicated in a November 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Though the Veteran's claim was remanded in part in an effort to obtain additional private records, the Veteran did not respond to a July 2011 notice seeking information regarding these records. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in April 2008 and October 2012; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In its October 2013 brief, however, the Veteran's representative argued that remand for an additional examination was necessary for soft tissue and neurologic evaluations. No such remand is necessary. The Veteran has already undergone two examinations, and these examinations include sufficient information to rate the Veteran under the applicable rating criteria. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Entitlement to an Increased Rating Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Further, examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran's degenerative joint disease of the right knee has been evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260. Diagnostic Code 5010 covers arthritis due to trauma, and is to be rated as degenerative arthritis. Ratings for degenerative arthritis are addressed by Diagnostic Code 5003, stating that degenerative arthritis will be rated "on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved." Diagnostic Code 5003 further provides that when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is applied for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. For VA purposes, normal range of motion of the knee is considered to be from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion of the knee is rated pursuant to Diagnostic Code 5260. Under that Diagnostic Code, limitation of flexion of the leg to 60 degrees is assigned a noncompensable rating. Flexion limited to 45 degrees warrants a 10 percent evaluation, and flexion limited to 30 degrees warrants a 20 percent rating. The highest available rating, 30 percent, is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of the knee is rated under 38 C.F.R. § 4.71a, DC 5261. Under this Diagnostic Code, extension limited to 5 degrees is assigned a noncompensable rating. A 10 percent rating is assigned when extension is limited to 10 degrees, a 20 percent rating is assigned with extension limited to 15 degrees, a 30 percent rating is assigned with extension limited to 20 degrees, and a 40 percent rating is assigned with extension limited to 30 degrees. The highest 50 percent rating is assigned with extension limited to 45 degrees. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999). The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In an August 2007 letter, T.D.R., MD, wrote that the Veteran suffered from degenerative joint disease with his right knee and that he would eventually need a replacement. The Veteran underwent a VA examination in April 2008. The Veteran related his history of injuring his knee during his active service, and stated that his knee had been gotten progressively worse. He stated that he could walk without assistive aids, that he could stand for 3 to 8 hours with only short rest periods, and that he could walk a quarter mile. The Veteran reported suffering from giving way, instability, pain, stiffness, weakness, effusion, and inflammation in his right knee; he denied suffering from deformity, dislocation or sublaxation, locking, or flare-ups. Upon examination, the Veteran's gait was described as normal. There was evidence of abnormal weight bearing, as the Veteran's right shoe showed increased wear on the outside edge of the heel. The examiner found that the Veteran had tenderness and painful motion in his right knee. There was, however, no evidence of crepitation, masses behind the knees, clicks or snaps, grinding, instability, patellar or meniscal abnormality, or other knee abnormality. Range of motion testing revealed that the Veteran had 110 degrees of flexion with pain at 110, and extension of 0 degrees without pain. The examiner reported that the DeLuca criteria were negative. The examiner diagnosed the Veteran as suffering from degenerative joint disease of the right knee, resulting in decreased strength and pain. In a December 2008 letter, Dr. T.D.R. again reported that the Veteran would "more than likely in the future . . . require replacement" of his right knee. He included no other pertinent information regarding the Veteran's right knee. In his April 2009 substantive appeal, the Veteran stated that he had to take pain killers after his last examination, and that his knee was more severe than the 20 percent rating assigned. In a June 2009 VA primary care note, the Veteran complained that his knee pain was no worse, but that coping with the pain was becoming difficult. The Veteran was reported to be able to walk well without a cane or a walker. He was provided a letter to his employer restricting prolonged standing. The Veteran underwent a VA examination in October 2012. The Veteran reported having to go to the ER due to severe pain in his right knee. He stated that prolonged standing will cause knee pain, and that both injections and pain killers have been ineffective. The Veteran reported suffering from flare-ups of his knee pain. Upon examination, the Veteran was found to have pain in his right knee. He had full strength with extension and flexion. There was no evidence of anterior, posterior, or medial lateral instability. There was no evidence of recurrent patellar sublaxation or dislocation, and no evidence of any tibial and or fibular impairment. Though the Veteran had previously had a surgical procedure for a meniscal condition, he was not reported to be currently suffering from a meniscus condition, and he had no residual signs or symptoms due to a meniscectomy. The Veteran was reported to use a knee brace regularly and a cane occasionally. Range of motion testing revealed that the Veteran had flexion of 110 degrees with pain beginning at 110. He had extension of 0 degrees with pain beginning at 0. After repetitive motion, the Veteran again had flexion of 110 degrees and extension of 0 degrees. Repetitive use did result in less movement than normal, pain on movement, and interference with sitting, standing, and weight-bearing. The examiner diagnosed the Veteran as suffering from degenerative joint disease of the right knee. He reported that the Veteran's condition would impact his ability to stand or walk for a prolonged period of time. Based on this evidence, a higher rating based on limitation of motion alone is not warranted. Under Diagnostic Code 5260, a 30 percent rating would only be warranted if the Veteran's flexion were limited to 15 degrees; each examination, however, showed him to have flexion of 110 degrees. Under Diagnostic Code 5261, a 30 percent rating would only be warranted if the Veteran's extension were limited to 20 degrees. Each examination showed that he had full extension of 0 degrees that was not limited by pain. Though the Veteran's right knee disability has been rated under Diagnostic Code 5010-5260, the Board must determine whether rating the Veteran under any other applicable Diagnostic Code would result in his receiving either a higher or a separate rating. The Veteran's knee has not been found to be ankylosed, precluding a rating under Diagnostic Code 5256. Diagnostic Code 5257 covers other impairments of the knee, including recurrent sublaxation or lateral instability. The Veteran does not contend, and there is no evidence, that he suffers from sublaxation in his right knee. Though in his April 2008 claim, the Veteran contended that he suffered from instability, no such instability was demonstrated in that examination or in his later October 2012 examination. These findings from the VA doctors outweigh the Veteran's self-reported claims of instability, and a rating under Diagnostic Code 5257 is not warranted. Diagnostic Code 5258 covers cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint. Diagnostic Code 5259 covers cartilage, semilunar, removal of, symptomatic. In his April 2008 examination, the Veteran reported suffering from pain and effusion in his right knee. In his October 2012 examination, however, the examiner reported that the Veteran was not currently suffering from a meniscus condition, and that he had no residual signs or symptoms due to a meniscectomy. As above, the examiner's objective findings outweigh the Veteran's subjective reports, and ratings under Codes 5258 and 5259 are not warranted. Ratings under Diagnostic Codes 5262 (tibia and fibula, impairment of) and 5263 (genu recurvatum) are similarly not warranted, as the Veteran has not been found to suffer from either of these conditions. With regard to the DeLuca criteria and functional limitations, the RO was explicit in a November 2012 rating decision that the 20 percent rating has been assigned because of these functional limitations. Indeed, absent consideration of such limitations, only a 10 percent rating would be warranted based on the evidence shown. As the Veteran's rating already takes into account his claimed functional limitations, and in the absence of any evidence of further disability, no increase is warranted. With regard to extraschedular consideration, the evidence shows that the rating criteria considered in this case reasonably describe the Veteran's disability level and, to the extent that they do not, the Veteran's rating has already been increased based on functional limitation. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected right knee disability is adequate, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). The preponderance of the evidence is against the claim for an increased rating for a right knee disability; there is no doubt to be resolved; and an increased rating for a right knee disability is not warranted. ORDER Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the right knee is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs