Citation Nr: 1335916 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-02 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an initial compensable rating prior to July 25, 2009, and in excess of 10 percent thereafter, for left knee chrondomalacia patella, status post left tibial tubercle osteotomy. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from January 2002 to October 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). The case was subsequently transferred to the jurisdiction of the Portland, Oregon, RO. In a December 2009 rating decision, the Portland RO granted an increased initial rating for left knee chrondomalacia patella, status post left tibial tubercle osteotomy, assigning a 10 percent rating effective July 25, 2009. As such, the RO has assigned "staged ratings" for left knee chrondomalacia patella, status post left tibial tubercle osteotomy of 0 percent (noncompensable) from October 23, 2007 through July 24, 2009, and 10 percent from July 25, 2009. The Board has therefore characterized this claim as stated in the Issues section of this decision to reflect the assigned "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). See also AB v. Brown, 6 Vet. App. 35, 38 (1993). A Board hearing was held before the undersigned in September 2012, and a transcript of the hearing is of record. In March 2013, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for further development. That development having been completed, the claim is again before the Board for further appellate review. FINDINGS OF FACT 1. Prior to July 25, 2009, the Veteran's left knee chrondomalacia patella, status post left tibial tubercle osteotomy was manifested by full range of flexion and extension. 2. From June 25, 2009, the Veteran's left knee chrondomalacia patella, status post left tibial tubercle osteotomy was manifested by loss of motion of no more than 10 degrees of flexion with full extension, and subjective complaints of pain. CONCLUSIONS OF LAW 1. Prior to June 25, 2009, the Veteran's left knee chrondomalacia patella, status post left tibial tubercle osteotomy did not meet the criteria for an initial compensable evaluation. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.31, 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261. 2. From June 25, 2009, the Veteran's left knee chrondomalacia patella, status post left tibial tubercle osteotomy did not meet the criteria for an initial rating in excess of 10 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.31, 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). The VCAA notice requirements apply to all five elements of a 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Since the November 2007 rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006). A November 2008 Statement of the Case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating and readjudicated the matter; December 2009, April 2012, August 2012, and June 2013 Supplemental SOCs (SSOCs) readjudicated the matter after the Veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105 (West 2002); see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond and supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). All relevant evidence necessary for an equitable resolution of the Veteran's claim have also been identified and obtained. The evidence of record includes VA outpatient treatment records, reports of multiple VA examinations, statements from the Veteran, and the transcript of a September 2012 hearing before the undersigned. The Veteran and his representative have not identified any other outstanding relevant evidence. The Veteran was afforded VA examinations to assess the severity of his left knee disability in August 2007, July 2009, March 2012, and May 2013. The reports of these examinations are adequate for rating purposes as they reflect the examiners interviewed and examined the Veteran, reviewed relevant records, and reported the clinical findings in detail. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination that is adequate for rating purposes); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (finding an examination report to be lacking sufficient detail and as a result inadequate as it failed to address any range-of-motion loss specifically due to pain and any functional loss due to pain during flare-ups). On examinations where the Veteran reported flare-ups, the Board notes that while the examiners did not estimate the degree of expected loss due to such flare-ups, they discussed the functional loss that occurred as a result of the reported flare-ups. The Veteran was provided an opportunity to set forth his contentions on the issues on appeal during the September 2012 hearing before the undersigned. The United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the September 2012 hearing the undersigned explained the issue, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The Board also notes that the case was remanded in March 2013 to provide the Veteran with an examination for his left knee. On remand, as noted above, the Veteran was afforded a VA examination in May 2013 and updated VA treatment records were obtained and associated with the Veteran's electronic file. Accordingly, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Evaluation of Left Knee The Veteran was initially granted service connection for left knee chrondomalacia patella, status post left tibial tubercle osteotomy in a November 2007 rating decision, with a noncompensable evaluation effective October 23, 2007. In a December 2009 rating decision, the Veteran's rating was increased to 10 percent, effective July 25, 2009. The Veteran argues that his left knee symptoms are more severe than the ratings currently assigned for both periods. Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2012). The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The Veteran's left knee chrondomalacia patella, status post left tibial tubercle osteotomy is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5099-5019. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27 (2012). Here, the hyphenated diagnostic code indicates that the Veteran's current left knee disability is rated, by analogy, under the criteria for bursitis (Diagnostic Code 5019). Under Diagnostic Code 5019, bursitis is rated on limitation of motion of the effective parts. See 38 C.F.R. §§ 4.20, 4.71a (2012). For the rating period prior to July 25, 2009, the next highest, 10 percent, rating under 38 C.F.R. § 4.71a, Diagnostic Code 5260 is assigned upon limitation of flexion of the leg to 45 degrees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, a 10 percent rating is assigned upon limitation of extension of the leg to 10 degrees. The rating schedule authorizes the assignment of a noncompensable rating in every instance in which the rating schedule does not provide for such a rating and the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2012). During the rating period prior to July 25, 2009, the Veteran's left knee chrondomalacia patella, status post left tibial tubercle osteotomy was manifested by full range of motion and strength. On August 2007 VA examination, the Veteran's examination of the left knee was within normal limits. Left knee flexion was to 140 degrees, and extension was to 0 degrees. There was no edema, effusion, weakness, tenderness, redness, heat, or abnormal movement. Pain, weakness, lack of endurance, fatigue, or incoordination did not impact further range of motion after repetitive exercise. Thus, the Veteran's left knee chrondomalacia patella, status post left tibial tubercle osteotomy does not meet the criteria for a 10 percent rating for the rating period prior to July 25, 2009 under Diagnostic Codes 5260 and/or 5261. The Veteran also did not meet the criteria for a 10 percent rating based on slight recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. On August 2007 VA examination, there was no evidence of recurrent subluxation, locking pain, joint effusion, crepitus, or varus/valgus instability. VA outpatient treatment during this period also revealed no subluxation or laxity. See, e.g., May 2009 VA treatment record. In short, the criteria for a 10 percent rating, or higher, have not been shown during this period. For the period from July 25, 2009, the Veteran's left knee chrondomalacia patella, status post left tibial tubercle osteotomy was evaluated as 10 percent disabling, under 38 C.F.R. § 4.71a, Diagnostic Code 5099-5019. The next highest, 20 percent, rating under 38 C.F.R. § 4.71a, Diagnostic Code 5260 is assigned upon limitation of flexion of the leg to 30 degrees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, a 20 percent rating is assigned upon limitation of extension of the leg to 15 degrees. During the rating period from July 25, 2009, the Veteran's left knee chrondomalacia patella, status post left tibial tubercle osteotomy was manifested by only slightly reduced flexion and full extension, with pain. On July 2009 VA examination, the Veteran's left knee had flexion to 130 degrees and extension to 0 degrees. After the third repetition, the Veteran could flex his left knee to 120 degrees. Left knee extension did not change after repetition, but the Veteran reported pain. At March 2012 and May 2013 VA examinations, the Veteran had full range of motion of his left knee (140 degrees of flexion and 0 degrees of extension), including after repetitive testing. The July 2009 VA examiner reported that repeated movements revealed pain, weakened movement, excessive fatigability, incoordination, and flare. On March 2012 VA examination, the Veteran reported flare-ups of the left knee, resulting in pain every day when standing or walking. Flare-ups did not affect him when sitting and resting. He also reported flare-ups on May 2013 examination, noting that they occurred during the cold, after walking more than a mile, and when sitting more than 30 minutes. At March 2012 and May 2013 VA examinations, repetitive testing did not reveal any objective evidence of painful motion, although there were subjective reports of pain; there was no other functional impairment of the left knee on either examination. Even when considering any functional loss due to pain or flare-ups under 38 C.F.R. §§ 4.40 and 4.45, the Veteran's left knee chrondomalacia patella, status post left tibial tubercle osteotomy has not met the criteria for a 20 percent rating for the rating period from July 25, 2009 under Diagnostic Codes 5260 and/or 5261. The RO's assignment of a 10 percent rating was based on the Veteran's symptoms of pain, although his range of motion was only slightly limited. See December 2009 rating decision. As this factor has already been considered in assigning the 10 percent rating, it provides no basis, without more, for assignment of a higher rating. Moreover, while the Veteran has complained of pain after standing and walking, the evidence does not reflect functional impairment congruent with a higher rating than those already assigned. VA examiners described only slight limitations on the Veteran's employment. See July 2009 VA examination report (noting no problems until end of the day when throbbing pain made kneeling impossible); March 2012 VA examination report (finding limitations with standing more than 10 minutes, walking more than four blocks, and squatting), and May 2013 VA examination report (finding no impact on the ability to work). At his Board hearing, the Veteran testified that he drove a truck, and had to occasionally stop to stretch his knee. See Board Hearing Tr. at 4-5. The Veteran also reported at VA examinations that he was able to walk a mile without any pain. Thus, while the Veteran has reported pain in the left knee after standing and walking, this additional limitation has already been taken into consideration in the assigned 10 percent rating; the Veteran's left knee has not been shown to be so disabling as to result in a higher rating. The Veteran also has not met the criteria for a 20 percent rating based on moderate recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. During this rating period, there was no evidence of subluxation or laxity. See, e.g., July 2009, March 2012, and May 2013 VA examination reports. Additionally, for the entire rating period on appeal, the medical evidence has not demonstrated any ankylosis (Diagnostic Code 5256), dislocated or removed cartilage (Diagnostic Code 5258-59), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263). Therefore, these diagnostic codes are inapplicable in this case. X-rays during the entire appellate period were also normal, without any evidence of arthritis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012) (noting that a 10 percent rating may be assigned for arthritis shown on X-ray findings, when limitation of motion of the joint is noncompensable under the appropriate diagnostic codes). As indicated, the AOJ has already granted staged ratings for the Veteran's left knee chrondomalacia patella, status post left tibial tubercle osteotomy. In addition to the Board's consideration of the propriety of the rating assigned at each stage, as discussed above, the Board has also considered whether any further staged rating of the disability is warranted. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Here, the Board finds that the Veteran's left knee symptoms have been consistent with the ratings that have been assigned for each rating period on appeal. At no point has the Veteran demonstrated left knee symptomatology that would warrant ratings higher than those currently assigned. Accordingly, further staged ratings are not warranted and the ratings the Board has assigned are appropriate for the respective periods here on appeal. The Board has also considered whether referral for an extraschedular rating is appropriate. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant'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." 38 C.F.R. § 3.321(b)(1) (2012). Related factors include "marked interference with employment" and "frequent periods of hospitalization." Id. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 Compensation Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Veteran's left knee symptoms primarily involve pain and, from July 25, 2009, minimal limitation of range of motion. Such impairment is specifically contemplated by the rating criteria. Hence, the rating criteria reasonably describe the Veteran's disability. In short, there is no indication in the record that the average industrial impairment from the Veteran's left knee chrondomalacia patella, status post left tibial tubercle osteotomy would be in excess of that contemplated by the ratings assigned for each rating period; the Veteran's disability picture is not shown to be exceptional or unusual. Therefore, referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial compensable rating prior to July 25, 2009, and in excess of 10 percent thereafter, for left knee chrondomalacia patella, status post left tibial tubercle osteotomy, is denied. ____________________________________________ Donnie R. Hachey Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs