Citation Nr: 1335616	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  06-39 621	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to an increased rating for patellofemoral pain syndrome and history of internal derangement with degenerative changes, right knee, rated as 10 percent disabling from July 1, 1995 to November 9, 2010. 

2. Entitlement to an increased rating for patellofemoral pain syndrome and history of internal derangement with degenerative changes, right knee, rated as 20 percent disabling from November 10, 2010.

3. Entitlement to an increased rating for patellofemoral pain syndrome and history of internal derangement with degenerative changes, left knee, rated as 10 percent disabling from August 24, 1990 to May 8, 2012.

4. Entitlement to an increased rating for patellofemoral pain syndrome and history of internal derangement with degenerative changes, left knee, rated as 20 percent disabling from May 9, 2012.



REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran served on active duty from February 1984 to August 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a 10 percent rating for patellofemoral pain syndrome and history of internal derangement with degenerative changes, right and left knee. 

In an October 2012 rating decision a 20 percent rating was granted effective from November 10, 2010 for the right knee, and effective from May 9, 2012, for the left knee. Since the Veteran indicated that he was seeking a rating in excess of 20 percent, the matter remains in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).  

The above stated issues were remanded in October 2010, April 2012, and March 2013, for additional development, that development having been achieved, the issues now return for appellate review.

This appeal was processed using the VBMS paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

FINDINGS OF FACT

1. Prior to November 10, 2010, the Veteran's patellofemoral pain syndrome and history of internal derangement with degenerative changes, right knee, was manifested by, at worst, 0 degrees of extension and 110 degrees of flexion; subluxation, locking, and effusion were not demonstrated.

2. From November 10, 2010, patellofemoral pain syndrome and history of internal derangement with degenerative changes, right knee, was manifested by, at worst, 0 degrees of extension and 120 degrees of flexion; there was evidence of frequent episodes of joint locking, pain, and effusion.

3. Prior to May 9, 2012, the Veteran's patellofemoral pain syndrome and history of internal derangement with degenerative changes, left knee, was manifested by, at worst, 0 degrees of extension and 125 degrees of flexion; instability, locking, and effusion were not demonstrated.

4. From May 9, 2012, the Veteran's patellofemoral pain syndrome and history of internal derangement with degenerative changes, left knee, was manifested by at worst, 0 degrees of extension and 110 degrees of flexion; there was evidence of frequent episodes of joint locking and pain.


CONCLUSION OF LAW

1. Prior to November 10, 2010, the criteria for a rating in excess of 10 percent for Veteran's patellofemoral pain syndrome and history of internal derangement with degenerative changes, right knee, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2013).

2. From November 10, 2010, the criteria for a rating in excess of 20 percent for Veteran's patellofemoral pain syndrome and history of internal derangement with degenerative changes, right knee, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5258 (2013).

3. Prior to May 9, 2012, the criteria for a rating in excess of 10 percent for Veteran's patellofemoral pain syndrome and history of internal derangement with degenerative changes, left knee, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2013).

4. From May 9, 2012, the criteria for a rating in excess of 20 percent for Veteran's patellofemoral pain syndrome and history of internal derangement with degenerative changes, left knee, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5258 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 
The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant 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 claimant seeks benefits and the evidence is in relative equipoise, the claimant 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).

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 Veteran and his 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 Veteran 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. See 38 C.F.R. § 3.159(b)(1).

In September 2005, the RO provided VCAA notice with respect to the Veteran's claims for increased rating claims for the right and left knee. In cases like this one, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been substantiated, thereby rendering section 5103(a) notice no longer necessary because the purpose the notice is intended to serve has been fulfilled. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473, 491 (2006).

The current appeal is a result of a notice of disagreement with the ratings assigned, and thus gives rise to no further duty to notify under VCAA. See 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 the Veteran's service treatment records, VA and private medical records, multiple lay statements, and multiple VA examination reports.

In the October 2010, April 2012, and March 2013 remands the Board requested that the AMC obtain additional treatment records and afford him new examinations. The record reflects that all available treatment records were obtained and associated with his claims file. A VA examination was obtained. Thus, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet.App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required).

The Veteran was provided with VA examinations in June 2006, November 2010, May 2012, and December 2012. The reports of the examinations reflect that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination, and rendered an appropriate diagnosis consistent with the remainder of the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examinations are adequate for rating purposes. See 38 C.F.R. § 4.2 (2013).

All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims.

All relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.


Merits of the Claims

The Veteran was initially assigned a 20 percent disability rating for his right knee and a 10 percent disability rating for his left knee from August 24, 1990. The Veteran's right knee rating was reduced to 10 percent on July 1, 1995. An increase back to 20 percent was assigned for the right knee from November 10, 2010. The left knee rating was increased to 20 percent from May 9, 2012.  

The Veteran contends that an increased evaluation for his service-connected right and left knee disabilities is warranted due to such symptoms as increased pain, limitation of motion, and instability. The preponderance of the evidence is against a finding of entitlement greater than 10 percent prior to November 10, 2010, and 20 percent from November 10, 2010 for the right knee. The preponderance of the evidence is also against a finding of entitlement greater than 10 percent prior to May 9, 2012, and 20 percent from May 9, 2012, for the left knee, and the appeal will be denied.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). 

Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.

VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also 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. Hart v. Mansfield, 21 Vet. App. 505 (2008).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (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).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered.

Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment).

The Veteran's right knee disability was rated as 10 percent disabling under Diagnostic Code 5010-5257 prior to November 10, 2010, and as 20 percent disabling under Diagnostic Code 5258 after November 10, 2010. The Veteran's left knee disability was rated as 10 percent disabling under Diagnostic Code 5257 prior to May 9, 2012, and as 20 percent disabling under Diagnostic Code 5258 after may 9, 2012. 

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

There are several Diagnostic Codes applicable to the Veteran's claims. Diagnostic Code 5010 is to be rated as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis, when substantiated by X-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent disability rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note 1 accompanying Diagnostic Code 5003 states that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based upon limitation of motion. 38 C.F.R. § 4.71a (2013).

Diagnostic Code 5260 provides ratings based upon the limitation of flexion in the leg. A noncompensable rating is assigned when flexion is limited to 60 degrees. 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. Id.

Diagnostic Code 5261 provides ratings based upon the limitation of extension in the leg. A noncompensable rating is assigned when extension is limited to 5 degrees. A 10 percent rating is assigned when extension is limited to 10 degrees. A 20 percent rating is assigned when extension is limited to 15 degrees. A 30 percent rating is assigned when extension is limited to 20 degrees. A 40 percent rating is assigned when extension is limited to 30 degrees. A 50 percent rating is assigned when extension is limited to 45 degrees. Id.

Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. Id.

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).

Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability of the knee. A 10 percent rating is warranted for a slight knee disability. A 20 percent rating is warranted for a moderate knee disability. A 30 percent rating is warranted for a severe knee disability. 38 C.F.R. § 4.71a.

The Board observes that the words "slight", "moderate", and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

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. Id. 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 (2013).

Diagnostic Code 5258 provides that dislocated semilunar cartilage with frequent episodes of "locking", pain and effusion into the joint is rated at 20 percent. 38 C.F.R. § 4.71a.

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.

Both VA and private medical records were reviewed. A March 2005 treatment record noted that the Veteran had bilateral flexion to 125 degrees and normal extension. 

The Veteran was afforded a VA examination in June 2006. The Veteran was diagnosed with patellofemoral pain syndrome and history of internal derangement with degenerative changes, bilaterally. Upon examination he exhibited right knee flexion to 110 degrees with pain and normal extension. Left knee flexion was to 130 degrees with pain and normal extension with no pain. There was no evidence of instability bilaterally. 

A July 2010 orthopedic surgery consult noted that the Veteran had bilateral degenerative joint disease and that he was obese. He reported occasional swelling in his right knee, but noted that his left knee hurt more than his right. There was no history of locking, slipping, or giving way. X-rays reviewed revealed narrowing of medial compartment bilaterally. Upon examination the Veteran exhibited a normal gait, no effusion, bilateral genuvalgum and stable ligaments.

An August 2010 x-ray report revealed progressive moderate tricompartmental osteoarthritis of the right knee and stable mild to moderate tricompartmental osteoarthritis of the left knee. 
The Veteran was afforded a VA examination in November 2010. The Veteran reported bilateral deformity, giving way, instability, pain, stiffness, weakness, incoordination, and decreased speed of joint motion. He stated he had episodes of subluxation one to three times a month in the right knee. He reported daily locking episodes with warmth, swelling and tenderness. The Veteran stated he had severe flare-ups of pain that lasted 1 to 2 days, every 1 to 2 months that were caused by overuse. He reported intermittent, but frequent use of a cane and a brace. Upon examination he exhibited an antalgic gait. His left knee was normal, but his right knee showed effusion that was medial, lateral, and inferior to the patella with evidence of grinding. Range of motion testing revealed some limitation of motion. The Veteran exhibited right knee flexion to 120 degrees with 0 degrees of extension, and left knee flexion to 140 degrees with 0 degrees of extension. There was objective evidence of pain with active motion on the right side, but no additional limitations after three repetitions. The examiner noted there was no change between range of motion on passive, active, or repetitive motion and no pain, fatigue, weakness, or incoordination was noted for either knee, except that passive motion for the right knee was 120-140 degrees with the pain starting at 120 degrees. The examiner noted that the Veteran's knee disability affected his work in that he had decreased mobility, pain, increased tardiness and absenteeism.

An April 2011 treatment record noted that the Veteran was morbidly obese and walked with a limp with crepitation of both knee with full range of motion. He was diagnosed with osteoarthritis of the knees. 

The Veteran was afforded a VA examination in May 2012. The Veteran was diagnosed with chondromalacia of patella and osteoarthritis in both his right and left knees. The Veteran reported flare-ups of pain in cold season. The left knee flare-up was mild and with less pain than the right knee flare-ups. Flare-ups last for a day 3-4 times a month and relieved by rest and pain medications. Upon examination the Veteran exhibited right knee flexion to 120 degrees with no objective evidence of painful motion and extension to 0 degrees with no objective evidence of painful motion. The Veteran exhibited left knee flexion to 110 degrees with no objective evidence of painful motion and extension to 0 degrees with no objective evidence of painful motion. Upon repetitive-use testing with 3 repetitions, the Veteran exhibited right knee flexion to 125 degrees and extension to 0 degrees. Left knee flexion was to 115 degrees with extension to 0 degrees. The Veteran did not exhibit any additional limitation in range of motion in either knee following repetitive motion testing; however, he did have the functional impairment of less movement than normal in both knees. The examiner noted that the Veteran's subjective complaints during the examination appeared out of proportion to the objective examination findings. There was no tenderness or pain on palpation to joint line or soft tissue in either knee. The Veteran's muscle strength and joint stability tests were normal bilaterally. There was no history of recurrent patellar subluxation or dislocation. The Veteran did not report shin splints. The Veteran did note meniscus conditions including frequent episodes of joint locking and joint pain bilaterally and frequent episodes of joint effusion in the right knee. The Veteran reported he used knee braces occasionally. The examiner noted there was no evidence of "recurrent subluxation" of the right knee and no crepitus of either knee. The Veteran stated that he regularly used a brace on his right knee for support and warmth at his workplace. X-rays associated with the examination revealed bilateral degenerative or traumatic arthritis. The examiner noted that the Veteran's knee condition affected his work as a juvenile parole officer because it limited his ability to do physical training.

The Veteran was afforded a VA examination in December 2012. The Veteran was again diagnosed with chondromalacia of patella and osteoarthritis in both his right and left knees. The Veteran reported flare-ups as noted above in the previous examination. Upon examination the Veteran exhibited right knee flexion to 120 degrees with no objective evidence of painful motion, extension to 0 degrees with no objective painful motion. He exhibited left knee flexion to 130 degrees with no objective evidence of painful motion, and extension to 0 with no objective evidence of painful motion. Upon repetitive-use testing the Veteran exhibited 130 degrees of flexion and extension to 0 degrees in the right knee and 140 degrees of flexion and extension to 0 degrees in the left knee. The Veteran did not exhibit any additional limitation in range of motion in either knee following repetitive motion testing. The Veteran did have the functional impairment of less movement than normal in both knees. There was no tenderness or pain on palpation to joint line or soft tissue in either knee. The Veteran's muscle strength and joint stability tests were normal bilaterally. There was no history of recurrent patellar subluxation or dislocation. The Veteran did not report shin splints or meniscal conditions. The Veteran reported he used knee braces occasionally. The examiner noted that associated x-rays revealed degenerative arthritis in both knees. Finally the examiner noted that the Veteran's knee condition limited the Veteran's ability to work as a juvenile probational officer because it limited his ability to perform physical training including floor maneuvers. 

With respect to the right knee, a rating in excess of 10 percent is not warranted prior to November 10, 2010. The June 2006 VA examination, treatment records dating March 2005 and an orthopedic surgery consult dated July 2010 note that there was no evidence of instability, effusion, or locking. The Veteran's extension was normal and flexion was at worst 110 degrees. A higher rating of 20 percent is not warranted as there was no evidence of locking, pain, and effusion into the joint, no evidence of moderate subluxation or lateral instability and no evidence that the Veteran had limitation of motion with flexion limited to 30 degrees or extension limited to 15 degrees.  Therefore, higher or separate ratings are not warranted under Diagnostic Codes 5260, 5261, 5257, or 5258. 

A higher 20 percent rating under Diagnostic Code 5003 is only appropriate in the absence of any limitation of motion. However, as noted above, the Veteran's right knee disability is manifested by some limited motion, albeit not to a compensable level. Therefore, a higher rating is not warranted under Diagnostic Code 5003.

From November 10, 2010, a rating in excess of 20 percent is not warranted. The November 2010 VA examination noted limited range of motion, but flexion was at worst 120 degrees with normal extension. There was objective evidence of medial, lateral, and inferior effusion in the right knee, but no evidence that the Veteran had severe recurrent subluxation or lateral instability. The Veteran reported that he had episodes of subluxation one to three times a month in the right knee, but there was no objective evidence of instability. Even giving the Veteran the benefit of the doubt this does not meet the level of severe recurrent subluxation or lateral instability. Subsequent examination reports in May 2012 and December 2012 note no recurrent subluxation, but frequent episodes of joint locking, pain, and effusion in the right knee. Therefore, the next higher rating of 30 percent is not warranted for severe recurrent subluxation under Diagnostic Code 5257.

With respect to the left knee, a rating in excess of 10 percent is not warranted prior to May 9, 2012. The June 2006 VA examination, treatment records dating March 2005 and an orthopedic surgery consult dated July 2010 note that there was no evidence of instability, effusion, or locking. The Veteran's extension was normal and flexion was at worst 125 degrees. The November 2010 VA examination noted limited range of motion, but flexion was at worst 140 degrees with normal extension. There was no objective evidence of severe recurrent subluxation, lateral instability, locking, pain or effusion in the left knee. A higher rating of 20 percent is not warranted as there was no evidence of locking, pain, and effusion into the joint, no evidence of moderate subluxation or lateral instability and no evidence that the Veteran had limitation of motion with flexion limited to 30 degrees or extension limited to 15 degrees.  Therefore, higher or separate ratings are not warranted under Diagnostic Codes 5260, 5261, 5257, or 5258. 

A higher 20 percent rating under Diagnostic Code 5003 is only appropriate in the absence of any limitation of motion. However, as noted above, the Veteran's right knee disability is manifested by some limited motion, albeit not to a compensable level. Therefore, a higher rating is not warranted under Diagnostic Code 5003.

From May 9, 2012, a rating in excess of 20 percent is not warranted. The May 2012 VA examination noted frequent episodes of joint locking and pain in the left knee. The Veteran's range of motion was limited at worst with flexion to 110 degrees and normal extension. The May 2012 and December 2012 VA examination noted no recurrent subluxation. Therefore, the next higher rating of 30 percent is not warranted for severe recurrent subluxation under Diagnostic Code 5257. 

Finally, the Board notes that there was no objective evidence that the Veteran had additional functional loss or limitation of motion based on the DeLuca factors of no pain, fatigue, weakness, or incoordination.

The Board has considered the Veteran's statements regarding the severity of his right and left knee disabilities. The Veteran is competent to attest to the occurrence of lay-observable events or the presence of disability or 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). However, the clinical findings reported on examination are more probative than the Veteran's statements as the Veteran is not shown to have the requisite training to determine the severity level of his service-connected right and left knee disabilities. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board). Furthermore, the Veteran's subjective report has been investigated in the light of the Rating Schedule and the preponderance of all the relevant evidence is against the claim. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2013).

Extraschedular Considerations

Under Floyd v. Brown, 9 Vet.App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration.

According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet.App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet.App, 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.

First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.

Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."

Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected lumbar spine disability. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disability centers on his complaints of pain and limitation of motion. These symptoms are specifically contemplated under the assigned ratings criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule.

Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot.

The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.



ORDER

An increased rating for patellofemoral pain syndrome and history of internal derangement with degenerative changes, right knee, rated as 10 percent disabling prior to November 10, 2010, is denied.

An increased rating for patellofemoral pain syndrome and history of internal derangement with degenerative changes, right knee, rated as 20 percent disabling from November 10, 2010, is denied.

An increased rating for patellofemoral pain syndrome and history of internal derangement with degenerative changes, left knee, rated as 10 percent disabling from prior to May 8, 2012, is denied.

An increased rating for patellofemoral pain syndrome and history of internal derangement with degenerative changes, left knee, rated as 20 percent disabling from May 9, 2012, is denied.



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Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs