Citation Nr: 1336330 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 08-01 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating in excess of 10 percent for postoperative arthralgia of the left knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from July 1996 to February 1999. This matter comes to the Board of Veterans' Appeals (Board) from a July 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to an increased rating for left knee disability. A notice of disagreement was filed in February 2007, a statement of the case was issued in January 2008, and a substantive appeal was received in January 2008. A January 2008 rating decision granted a temporary total rating (TTR) pursuant to 38 C.F.R. § 4.30 based on the need for convalescence, from December 12, 2006, to January 31, 2007. A 10 percent disability rating was assigned from February 1, 2007. In November 2011, the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC for additional development. The issue of entitlement to service connection for PTSD has been raised by the record in an October 2013 statement from the Veteran's representative, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's left knee disability has been manifested by x-ray evidence of minimal degenerative change, tenderness of the medial aspect of the knee, crepitus, full extension, and flexion limited to 85 degrees with pain throughout. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a left knee disability have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.20, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5257, 5003-5260 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002 & Supp. 2013)); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2013), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Pelegrini v. Principi, 17 Vet. App. 412 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The Veteran was provided VCAA notice in a May 2006 letter, advising him of what information and evidence is needed to substantiate his claim for an increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter included information regarding how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that VA has complied with all assistance provisions of the VCAA, to include substantial compliance with the prior remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The AMC asked the Veteran to provide private treatment records he had identified from Dr. J. Long, obtained ongoing treatment records from the Birmingham VA medical center (VAMC) dated from October 2007, and provided the Veteran with an additional left knee VA examination. The evidence of record contains service treatment records, post-service VA treatment records, a statement from Dr. J. Long, VA examination reports, and lay statements from the Veteran and his representative. There is no indication of relevant, outstanding records that would support the Veteran's claims. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Criteria & Analysis Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2013). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Additionally, although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2, when assigning a disability rating, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation during the relevant rating period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods for the left knee disability on appeal. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). 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 the 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). It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's left knee postoperative arthralgia has been rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003-5257 prior to the TTR and as 10 percent disabling pursuant to Diagnostic Code 5003-5260 after the TTR. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) 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 codes, a rating of 10 percent is for application 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. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4,71a, Diagnostic Code 5003. In addition, the 20 percent and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Id. at Note (1). Diagnostic Code 5257 pertains to other impairment of the knee involving recurrent subluxation or lateral instability and provides a 10 percent rating for slight impairment, 20 percent rating for moderate impairment, and 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013). For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. (Because ratings may be separately assigned for limitation of flexion and limitation of extension, the Board will consider both Diagnostic Codes). A 10 percent rating is warranted for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. A higher rating is not available under this Diagnostic Code. The Veteran contends that his left knee disability is more severely disabling than reflected by the assigned 10 percent rating. In support of his claim for an increased rating, the Veteran submitted a February 2006 letter from J. Long, D.O., who indicated that the Veteran complained of left knee tenderness and had "some minimal swelling of the para-patella with positive anterior/posterior tenderness to palpation, favoring the left knee walking with mild crepitus." The Veteran was afforded a VA joints examination in May 2006. He reported a recent increase in pain and swelling in his left knee, which he notices with prolonged standing or walking, especially at work. He stated that he had not missed a significant amount of work days because of knee pain, but he does require the use of a knee brace at all times and takes Advil with some resolution of pain. He described a patellar dislocation about three weeks previously, which was reduced by his private doctor. He reported constant pain, exacerbated with increased activities and relieved with rest and over-the-counter medications. He denied further limitations except the inability to walk with flare-ups of his knee pain, which impairs his ability to work. The impression of a left knee x-ray was minimal degenerative change. On examination of the left knee, the Veteran walked with a very slight limp, there was no swelling or erythema, there was no instability, motor strength was 5/5 throughout, and sensation to light touch was intact throughout. There was positive point tenderness along the medial joint line. On left knee range of motion testing, the Veteran had full extension and flexion to 130 degrees; crepitus was noted at full extension. Following repetitive movement, there was no additional limitation of pain, fatigue, weakness, or lack of endurance. The diagnosis was status post chondromalacia with arthralgia of the knee. The examiner commented that the Veteran was status post arthroscopic surgery in 1997 with increasing arthralgic pains. He had no functional loss; however, he had mild to moderate disability secondary to pain. During a July 2006 initial visit at the Birmingham VAMC, the Veteran described walking on concrete all day in his job at a warehouse and increasing left knee pain, usually at the end of the day. He denied recent injury. He stated that over-the-counter Tylenol eases the pain and that he had a knee brace, but does not wear it because it irritates his skin. On examination, there was no edema, no calf tenderness, and neurological testing was grossly intact. Left knee patellofemoral crepitus was present, and he complained of pain with flexion without limitation and otherwise negative; he had full active and passive range of motion. An August 2006 left knee MRI revealed a complex medial meniscal tear extending throughout the inferior articular surface of the posterior horn; possible tear of the anterior horn of the lateral meniscus; and a grade I medial collateral ligament sprain. During an October 2006 initial visit at the VA Jasper clinic, the Veteran stated that he works as a truck driver and picks up heavy propane tanks and was wondering if he could join law enforcement as a career. He indicated that his left knee starts aching in mid-day and hurts quite a bit toward the end of the day. On examination, muscle strength was 5/5, there was no effusion of the left knee joint, there was "some crepitus on flexion extension" of the left knee, and range of motion seemed to be preserved. A December 2006 VA surgery history and physical report details that the Veteran was working as a heavy laborer hauling fuel and had a history of worsened left knee pain over the last year. He complained of pain and grinding, some mechanical symptoms, and pain at night after being on his knee all day. He stated that the pain was worse when he loads the patellofemoral joint in a flexed position. Physical examination of the left knee revealed extension to 0 degrees and flexion to 130 degrees, medial and lateral joint line tenderness, and medial patellofemoral tenderness to palpation. He had left knee surgery the same month. Orthopedic VA follow-up notes dated in December 2006 and January 2007 document left knee range of motion from 0 to 120 degrees with pain with extreme flexion, and full range of motion, respectively, as well as tenderness to palpation on the medial joint line. As noted, a TTR was in effect from December 12, 2006 through January 31, 2007. February 2007 VA treatment records reflect that the Veteran presented to the emergency room, reporting that he stepped off a truck approximately one week earlier when his left knee buckled and he fell. He stated that he had left knee pain and swelling. When seen in the orthopedic clinic the same day, he stated that he fell while "on-the-job, was on light duty prior to that incident when he fell coming down from a truck (tanker truck)" and had diffuse knee pain since that time. On examination, he had a left knee contusion, but full range of motion and no effusion. A left knee x-ray was negative. He was advised that he should not be clutching an "18-wheeler" or climbing up and down from tanker trucks and encouraged to seek VA benefits to train for a new occupation. In January 2008 correspondence, the Veteran stated that his left knee pops and grinds, is unstable and prevents lifting, gave way when he fell while working in February 2007, causes him to walk with a limp all the time, is very painful at times, and seemed to be losing range of motion. A May 2009 VA primary care note reflects that Veteran's complaint of worsening left knee pain. Left knee examination revealed full but painful range of motion, tenderness to palpation on the anteromedial side, and no effusion or instability. The Board notes that a June 2009 rating decision denied the claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to the service-connected left knee disability and a claimed back disorder. During a September 2009 VA primary care visit, the Veteran described some nocturnal left knee pain; no overt laxity or locking; and some improvement with occupational modifications by his employer, which included a lift and automatic transmission for his truck. On left knee examination, there was no hypertrophy or effusion, no patellofemoral or ligamentous laxity, and no gross deformity, but there was mild passive range of motion crepitus. In compliance with the November 2011 remand instructions, the AMC issued a November 2011 letter to the Veteran with a copy to his representative, asking the Veteran to complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information, for Dr. Long and any other private physician who treated him for his left knee, or to provide the records to VA himself. He did not return the authorization form or submit treatment records from Dr. Long. The Veteran was afforded another VA examination in December 2011. He stated that since his 2006 left knee surgery, the knee had progressed with constant, daily pain of moderate severity that was worse with bending, prolonged standing, and walking and improved with rest. He denied incapacitating flare ups that cause him to miss work or emergency room visits or procedures in the last year. Left knee range of motion testing revealed flexion to 85 degrees with objective evidence of painful motion beginning at 0 degrees and extension to 0 degrees with objective evidence of pain at 0 degrees (neutral position). The Veteran was able to perform three repetitions of range-of-motion testing, maintaining flexion to 85 degrees and extension to 0 degrees without additional limitation in range of motion. The examiner identified functional loss, functional impairment, or additional limitation of range of motion of the left knee after repetitive use to include less movement than normal; weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight-bearing. Other objective left knee findings included the following: no tenderness or pain to palpation for joint line of soft tissues, normal muscle strength, no instability on testing, and no evidence of recurrent patellar subluxation or dislocation. No other residuals from the Veteran's in-service and 2006 left knee chondromalacia repairs were found, and inspection of his surgical scars did not reveal that they were painful and/or unstable, or measuring more than 39 square inches. The Veteran reported regularly using a left knee brace, but denied using other assistive devices. Left knee x-rays revealed no significant osseous abnormalities identified. The examining physician commented that the Veteran's left knee disability would prevent employment of a physical but not a sedentary nature due to the issues with pain with prolonged standing, walking, bending, and crouching. The Board has considered the medical and lay evidence of record, but finds that a preponderance of the evidence is against the claim for a rating in excess of 10 percent for postoperative arthralgia of the left knee. The Veteran's left knee disability has been manifested by x-ray evidence of minimal degenerative change, tenderness of the medial aspect of the knee, crepitus, full extension, and flexion limited to 85 degrees with pain throughout. These findings are consistent with the 10 percent rating assigned for the left knee disability based on x-ray evidence of left minimal degenerative arthritis affected by noncompensable, painful limitation of motion. A rating higher than 10 percent is not warranted because the examination reports and other medical records do not demonstrate any limitation or extension, flexion limited to 60 degrees (for a noncompensable rating based on limitation of flexion), ankylosis, recurrent subluxation or lateral instability, dislocation of semilunar cartilage, or impairment of the tibia and fibula. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, 5260, 5261, 5262. The Board emphasizes that despite the Veteran's subjective complaints of swelling, dislocation, popping, and "buckling," these symptoms are not confirmed by objective medical evidence of record. In addition, the objective medical evidence does not reflect any functional loss beyond what is already contemplated by the 10 percent rating due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. See 38 C.F.R. §§ 4.40 and 4.45, and DeLuca. The Board has considered the assertions by the Veteran pertaining to his left knee. He is competent to attest to the symptoms he experiences. However, the Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his left knee disability because his subjective reports of knee symptoms such as instability and swelling, have not been confirmed by objective medical evidence with the exception of "minimal swelling of the para-patella" noted by Dr. Long in his February 2006 statement. Instead, physical examination reports consistently reflect no swelling or effusion and no instability. The Board also acknowledges the October 2013 statement from the Veteran's representative, requesting a remand for another VA examination and asserting that the December 2011 VA examination was inadequate because the examiner "failed to indicate where the extension ends." However, a review of the examination report reflects that the examiner clearly indicated that left knee extension ended at 0 degrees. Moreover, the report also reflects that the Veteran was able to complete three repetitions of range-of-motion testing and did not have any limitation of extension on testing. Finally, in the section "functional loss and additional limitation in [range of motion]," the examiner again indicated that the Veteran did not have additional limitation in range of motion of the left knee and lower leg following repetitive-use testing. Therefore, the Board finds that the examiner, in fact, did indicate where left knee extension ended, including after repetitive-use testing, and a remand for an additional examination is not required. The Board has also considered whether staged ratings are appropriate, but concludes that the criteria for a higher schedular rating for the left knee have not been met at any time during the appeal. Therefore, staged ratings for left knee postoperative arthralgia are not warranted for any portion of the current claim period. As a final matter, the Board has also considered whether the left knee disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical"). Here, the rating criteria reasonably describe the disability level and symptomatology for his left knee disability and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular rating is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. For the foregoing reasons, the Board finds that the evidence does not support the assignment of more than 10 percent for left knee postoperative arthralgia at any point during the course of the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, entitlement to a higher rating is not warranted, and the claim must be denied. In addition, at no time during this claim has the Veteran had compensable limitation of flexion and compensable limitation of extension at the same time, or compensable limitation of motion and objective findings of instability such that separate ratings are warranted under Diagnostic Codes 5260, 5261, or 5257 for the left knee disability. See VAOPGCPREC 9-98 and 23-97, VAOPGCPREC 9-2004. In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to a rating in excess of 10 percent for postoperative arthralgia of the left knee is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs