Citation Nr: 1335324 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-43 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability, to include as secondary to the service-connected left knee disability. 2. Entitlement to a rating in excess of 20 percent for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from June 1959 to June 1962, and from January 1968 to October 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2013, the Board solicited an expert medical opinion on the service-connection claim from the Veterans Health Administration (VHA). The Board received the opinion in May 2013. Copies of the opinion were sent to the Veteran and his representative later that month. At that time, the Board advised the Veteran that he had 60 days to submit additional evidence in connection with his claim. The Veteran did not reply. The Veteran's representative submitted a response brief in July 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2013). FINDINGS OF FACT 1. The Veteran's right knee disability did not have its onset during active service or within one year thereafter, and it is not related to such service. 2. The Veteran's right knee disability is not proximately due to, the result of, or aggravated by the service-connected left knee disability. 3. For the entire appeal period, the Veteran's left knee disability has not been manifested by severe recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability, to include as secondary to the service-connected left knee disability, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 2. The criteria for a rating in excess of 20 percent for the left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the duty to notify requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In this case, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran was notified in a May 2008 letter of the criteria for establishing secondary service connection and an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. That letter accordingly addressed all notice elements and predated the initial adjudication by the RO in October 2008. The Board acknowledges that the Veteran has not been notified of the criteria for establishing direct service connection. However, on his claim for benefits, he specified that his right knee disability was secondary to his service-connected left knee disability. He reiterated this contention in his notice of disagreement and substantive appeal. Thus, given his consistent, specific contention, the Board finds no prejudice in the omission of such notice. See Bernard v. Brown, 4 Vet. App. 384 (1993). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination or obtaining an opinion when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, and post-service reports of VA and private treatment and examination. The Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims. VA provided the Veteran with an examination in September 2008 to determine the nature and etiology of his right knee disability. As the opinion in that report was incomplete, the Board requested an expert medical opinion from the VHA. The Board finds the May 2013 VHA opinion to be thorough and adequate upon which to base a decision on the claim, as it was based on a full reading of the Veteran's claims file, including the service treatment records, private and VA medical records, and the Veteran's own statements, and is supported by sound rationale. VA provided the Veteran with an examination in September 2008 to determine the nature and severity of his left knee disability. The Board finds the VA examination report to be thorough and adequate upon which to base a decision on the claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information needed to evaluate the disability under the applicable rating criteria. Further, there has been no indication from the Veteran or his representative that his disability has increased in severity since that examination. Given the above, the Board finds that no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2013). Service connection is permitted not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran is service-connected for a left knee disability, diagnosed as medial collateral ligament (MCL) and anterior cruciate ligament (ACL) tears. He contends that he has had to overuse his right knee to compensate for his service-connected left knee disability. He was diagnosed with degenerative joint disease of the right knee in July 2008. The Veteran's service treatment records show that he injured his left knee, was diagnosed with tears of the ACL and MCL, underwent arthrotomy, and was using a cane. They also show that he had atrophy of the left quadriceps muscle. VA examination reports from June 1971 to March 1976 show continued atrophy of the left quadriceps muscle. A February 1972 examination showed a slight limp due to the left knee disability but a March 1976 examination showed a satisfactory gait. More recently, VA treatment notes from April 1998 to March 2003 show that the Veteran walked with a normal gait but with occasional loss of balance. An April 2003 VA examination also showed a normal gait. The Veteran was afforded a VA examination in September 2008. Examination showed a slight limping gait. The examiner provided a diagnosis of right knee arthralgia and opined that there was no correlation between the right knee disorder and the service-connected left knee disability. The examiner explained that the gait was not severely altered, only showing a mild limp, and there is nothing in the medical literature that suggests that a mild limp in one knee would cause any type of condition in the other knee. The examiner further opined that the Veteran's right knee disorder is more likely than not related to the effects of aging, musculoskeletal deconditioning due to physical inactivity, and a predisposition to developing arthralgic conditions. The September 2008 VA examiner did not provide an opinion specific to whether the Veteran's right knee disorder has been aggravated by his service-connected left knee disability. Also, the examiner opined that the right knee disorder was related in part to musculoskeletal deconditioning due to physical inactivity, leaving open the possibility that the service-connected left knee disability was a factor in the Veteran's physical inactivity. Thus, the Board requested a VHA opinion, which was received in May 2013. After a thorough review of the Veteran's claims file, the physician concluded that the right knee disability was not due to or aggravated beyond natural progression by the service-connected left knee disability. The physician noted that the service-connected left knee disability had remained fairly stable from 1976 to 2008 and never developed enough degenerative disease to warrant total knee replacement. The physician noted that there is no documentation in the orthopedic literature that would support the contention that the Veteran's right knee deteriorated secondary to his right knee which has remained unreplaced for 44 years. Initially, the Board notes that the Veteran does not contend, and the evidence does not show, that his right knee disability was incurred in active service. The record shows that he was found to have arthritis of the right knee in July 2008. Thus, the Board finds that the Veteran's right knee disability did not have its onset during active service or within one year thereafter, and it is not related to such service. Given the opinions of record, the Board finds that the Veteran's right knee disability is not proximately due to, the result of, or aggravated by the service-connected left knee disability. Hayes v. Brown, 5 Vet. App. 60 (1993). Both the VA examiner and the VHA medical expert noted that the Veteran's gait was not severely altered and there is nothing in the medical literature that suggests that a mild limp in one knee would result in disability of the other knee. The medical expert further noted that the service-connected left knee disability had remained fairly stable throughout the years, not warranting total knee replacement, and there is no documentation in the orthopedic literature that would support the contention that an unreplaced knee would cause deterioration in the other knee. Thus, the medical expert ruled out any association between the Veteran's service-connected left knee disability and the claimed right knee disability. The Board notes that an October 2006 VA examination report contains the opinion that the Veteran's service-connected left knee disability contributed to back trouble in that the disability resulted in using the back more in the course of the day. Based on that opinion, service connection for a back disability was granted. However, the Board points out that the opinion was specific to the back and is of little probative value in this appeal. See Hayes v. Brown, 5 Vet. App. 60 (1993). In conclusion, service connection for a right knee disability, to include as secondary to the service-connected left knee disability, is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013). The Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). But see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When the veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis below is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. The Veteran is seeking an increased rating for his left knee disability, diagnosed as MCL and ACL tears. He filed his claim in April 2008. The Veteran's left knee disability has been assigned a 20 percent rating under Diagnostic Code 5257. 38 C.F.R. § 4.71a (2013). Under Diagnostic Code 5257, a 20 percent rating is assigned for moderate recurrent subluxation or lateral instability, and a maximum 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2013). Under Diagnostic Code 5260, a 0 percent rating requires limitation of flexion to 60 degrees, a 10 percent rating requires limitation of flexion to 45 degrees, a 20 percent rating requires limitation of flexion to 30 degrees, and a maximum 30 percent rating requires limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a (2013). Under Diagnostic Code 5261, a 0 percent rating requires limitation of extension to 5 degrees, a 10 percent rating requires limitation of extension to 10 degrees, a 20 percent rating requires limitation of extension to 15 degrees, a 30 percent rating requires limitation of extension to 20 degrees, a 40 percent rating requires limitation of extension to 30 degrees, and a maximum 50 percent rating requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a (2013). For VA purposes, normal extension and flexion of the knee is from 0 to 140 degrees. Plate II, 38 C.F.R. § 4.71 (2013). Separate ratings may be assigned based on limitation of flexion and limitation of extension of the same knee joint under Diagnostic Code 5260 and Diagnostic Code 5261, respectively. VAOPGCPREC 09-04 (September 17, 2004). Separate ratings may be assigned under Diagnostic Code 5257 for other knee impairment or 5258/5259 for cartilage impairment, and Diagnostic Code 5010, where there is x-ray evidence of arthritis in addition to recurrent subluxation, lateral instability, or symptoms of locking, pain, and effusion related to the removal or dislocation of semilunar knee cartilage, but only if there is additional disability due to limitation of motion. See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCREC 9-98 (August 14, 1998). An August 2008 VA treatment note shows that range of motion of the left knee was full except mildly limited flexion, and that there was some laxity. A September 2008 VA treatment note shows range of motion of the left knee from 0 to 120 degrees. During a September 2008 VA examination, the Veteran complained of his left knee giving way resulting in falls associated pain and swelling. He denied any flare-ups. He noted using a brace and rolling walker. Examination showed range of motion from 0 to 130 degrees with no obvious pain. There was crepitus, tenderness diffusely about the knee, and a very small effusion. There was no instability to varus or valgus stress but Lachman's test was very mildly positive. There was increased pain following repetitive testing but no other limitations such as incoordination, fatigue, weakness, or lack of endurance. X-rays showed no evidence of fracture, dislocation, or arthritic change in the medial or lateral joint compartment but there were mild osteophytes along the posterior margin of the patella. The diagnosis was of MCL and ACL tears of the left knee with mild instability. An October 2008 VA treatment note shows that range of motion of the left knee was full except mildly limited flexion, and that there was some laxity. A November 2008 VA treatment note shows active range of motion of the left knee from 5 to 90 degrees. There was a mild varus deformity and anterior drawer test was mildly positive. There was crepitus but no effusion or tenderness. X-rays showed tricompartmental degenerative joint disease with medial compartment narrowing but no fractures or dislocations. Given the above, the objective evidence of record shows that, for the entire appeal period, the Veteran's left knee disability has not been manifested by severe recurrent subluxation or lateral instability. His instability has been described as "mild" or "some" but never severe. Of particular note, the Lachman's test for instability was only mildly positive. Thus, a higher 30 percent rating is not warranted under Diagnostic Code 5257. As for range of motion of the left knee, except for November 2008 when flexion was limited to 90 degrees, flexion was either mildly limited or limited to 120 to 130 degrees. Similarly, except for November 2008 when extension was limited to 5 degrees, extension was full. Even considering the principles set forth in 38 C.F.R. §§ 4.40, 4.45, and 4.59, those findings do not support a compensable rating under either Diagnostic Code 5260 or 5261. Moreover, although arthritis of the knee has been shown, without additional, compensable disability due to limitation of motion, a separate rating is still not warranted under Diagnostic Code 5260 or 5261. See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCREC 9-98 (August 14, 1998). In conclusion, a rating in excess of 20 percent for the left knee disability is not warranted at any time during the appeal period. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107 (West 2002 & Supp. 2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additional Considerations The Board must determine whether the schedular evaluation is inadequate, thus requiring a referral of the claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111 (2008). When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2013); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected left knee disability, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the disorder. Although the Veteran is using a brace and walker, the symptom requiring such use-instability-is specifically contemplated in the rating criteria. There is no objective or subjective evidence of any disability symptom or factor of disability which is not encompassed within the assigned evaluation. As the rating schedule is adequate to evaluate the disability, referral for extra-schedular consideration is not in order. Even if the Board were to determine that the rating criteria were inadequate to address all of the effects of the Veteran's service-connected left knee disability, his knee disability does not present exceptional or unusual circumstances. During the September 2008 VA examination, he reported working until 1977 when he retired after developing a right inguinal hernia. There is also no indication his disability has resulted in frequent hospitalizations. Thus, the Board declines to refer the matter for extra-schedular consideration. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, due to his service-connected left knee disability. As noted, he retired in 1977 due to a nonservice-connected right inguinal hernia. Thus, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Service connection for a right knee disability, to include as secondary to the service-connected left knee disability, is denied. A rating in excess of 20 percent for a left knee disability is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs