Citation Nr: 1336681	
Decision Date: 11/12/13    Archive Date: 11/22/13

DOCKET NO.  11-12 178	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a right shoulder disability.

2.  Entitlement to a disability rating in excess of 10 percent for left knee traumatic patellar tendonitis.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

M. Caylor, Associate Counsel




INTRODUCTION

The Veteran had active military service from April 1985 to May 1992.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
 
The Board has reviewed the physical claims file and the Virtual VA electronic claims file.

The Board acknowledges that additional evidence was added to the claims file following the April 2011 Statement of the Case (SOC) but no Supplemental Statement of the Case (SSOC) was issued.  However, the Veteran submitted a statement through his representative in April 2012 waiving his right to have the Agency of Original Jurisdiction (AOJ)-in this case, the RO-review the evidence in the first instance.  Therefore, there is no bar to proceeding with a formal decision at this time.  38 C.F.R. § 19.37(a) (2013).

The issue of entitlement to service connection for a right shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran's left knee patellar tendonitis is manifested by limitation of flexion to 90 degrees; painful motion; weakness; and subjective complaints of flare-ups following prolonged sitting, standing, bending, walking, climbing stairs, or carrying more than five pounds and without evidence of recurrent subluxation or instability, or additional functional loss on repetitive use or x-ray abnormalities.



CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent for left knee patellar tendonitis have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5256-59, 5260-63 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Procedural Duties

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. §§5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013).  Under the VCAA, VA must assist a claimant when he or she files a complete, or substantially complete, claim for benefits.  This assistance involves notifying claimants of evidence that is necessary, or would be of assistance, in substantiating their claims, and providing notice that, if service connection is awarded, a disability rating and an effective date for the award of benefits will be assigned.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2013); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). 
      
For increased disability rating claims, the VCAA only requires general notice that is not tailored to the specific disability that informs the claimant that the evidence necessary to substantiate a claim includes:  (1) evidence showing a worsening or increase in severity; (2) evidence showing the effect of any worsening on employment; and (3) general notice of how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277-78 (Fed. Cir. 2009).  In this case, the Veteran received a VCAA notice letter in December 2009 that informed him of the evidence required to substantiate an increased evaluation claim, how VA determines disability ratings and effective dates, and what evidence VA is responsible for obtaining.  

VA also satisfied its duty to assist the Veteran in the development of his claim.  

First, VA satisfied its duty to seek relevant records.  The RO associated the Veteran's service treatment records (STRs) and treatment records from the VA Outpatient Clinic (VAOPC) in El Paso, Texas, with the claims file.  The Veteran has not identified any treatment records aside from those that are already of record; therefore, the Board concludes VA has made every reasonable effort to obtain all records relevant to the Veteran's claim.  

Second, VA satisfied its duty to provide a medical examination and obtain an opinion when required.  VA provided the Veteran several medical examinations regarding the severity of his left knee patellar tendonitis.  The examinations are adequate, as the examination report shows that the examiner considered the relevant history of the Veteran's symptoms and provided a sufficiently detailed description of the disability.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate).  

As VA satisfied its duties to notify and assist the Veteran, the Board finds there is no further action needed to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

II.  Merits of the Claim

The Veteran contends he is entitled to a disability rating in excess of 10 percent for his left knee patellar tendonitis.  

The Board finds the Veteran not entitled to a disability rating in excess of 10 percent for his left knee patellar tendonitis because it does not produce limitation of motion or functional limitation sufficient to warrant a rating in excess of 10 percent based on the criteria set forth in VA's Schedule for Rating Disabilities.

When deciding a case, the Board must consider all evidence on both sides of an issue, base its decision on the entire record, and state the reasons or bases for any findings and conclusions on material issues of fact and law.  38 U.S.C.A. §§ 1154(a), 5107(b), 7104(a) (2013); 38 C.F.R. §§ 3.303(a), 3.304(b)(2), 3.307(b) (2013); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Board must focus on the evidence necessary to substantiate a claim and what the evidence fails to show, and, in doing so, explain why any material evidence favorable to the claimant was rejected or given little weight.  38 U.S.C.A. § 7104(d)(1); Timberlake v. Gober, 14 Vet. App. 122, 129 (2000).  But see Dela Cruz v. Principi, 15 Vet. App. 143, 148-149 (2001) (finding that the Board need not discuss every piece of evidence in the record).

If VA determines that a preponderance of the evidence supports a claim, or if the claim is in relative equipoise, the claimant shall prevail.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).  If a preponderance of the evidence is against a claim, the claim will be denied.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54).  If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant.  Gilbert, 1 Vet. App. at 53-54.  

Disability evaluations are governed by VA's Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2013).  The percentage ratings in the Rating Schedule represent the "average impairment in earning capacity" resulting from service-connected disabilities, and residuals thereof, in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013).  If an increase in a disability rating is at issue and service-connection has already been established, the primary concern is the veteran's present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  

When assigning a disability evaluation, the Board must consider the potential application of any applicable regulation governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  During an evaluation, the symptomatology of a veteran's service-connected disability is compared with criteria set forth in the Rating Schedule and a percentage rating is assessed.  38 C.F.R., Part 4.  If more than one percentage rating could apply, the higher one will be assigned if the disability picture more nearly approximates the required criteria for that rating.  38 C.F.R. § 4.7.  

The evaluation of the same disability under various diagnoses, the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and evaluation of the same manifestation under different diagnoses are to be avoided.  38 C.F.R. § 4.14.  If, however, the multiple diagnostic codes each require "distinct and separate" symptomatology that does not duplicate or overlap with the symptomatology required in the other diagnostic codes, a veteran may be assessed multiple ratings.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  A veteran may also be assessed multiple ratings if multiple distinct degrees of disability occurred during the relevant period.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The Veteran's service-connected left knee patellar tendonitis is rated under Diagnostic Code 5024-5260.  38 C.F.R. § 4.71a.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned.  38 C.F.R. § 4.27.

Diagnostic Code 5024 for tenosynovitis requires that diseases under Diagnostic Codes 5103 through 5024 be rated on limitation of motion of affected parts, as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5024.  For purposes of rating disability from arthritis, the major joints are the shoulder, elbow, wrist, hip, knee, and ankle.  38 C.F.R. § 4.45. 

Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings 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 codes, a rating of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion, to be combined, not added.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  If there is no limitation of motion, then a 20 percent rating applies if there is X-ray evidence of the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  A 10 percent rating applies if there is X-ray evidence of the involvement of two or more major joints or two or more minor joint groups.  However, ratings of 20 or 10 percent based on X-ray findings will not be combined with ratings based on limitation of motion and will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024.  38 U.S.C.A. § 4.71a, Diagnostic Code 5003.  

Under Diagnostic Code 5260 for limitation of flexion of the leg, a 20 percent rating applies if there is flexion limited to 30 degrees.  A 10 percent rating applies if there is flexion limited to 45 degrees, and a 0 percent rating applies if there is flexion limited to 60 degrees.  38 C.F.R. §  4.71a, Diagnostic Code 5260.

Under Diagnostic Code 5261 for limitation of extension of the leg, a 50 percent rating applies if there is extension limited to 45 degrees.  A 40 percent rating applies if there is extension limited to 30 degrees.  A 30 percent rating applies if there is extension limited to 20 degrees.  A 20 percent rating applies if there is extension limited to 15 degrees.  A 10 percent rating applies if there is extension limited to 10 degrees, and a 0 percent rating applies if there is extension limited to 5 degrees.  38 C.F.R. §  4.71a, Diagnostic Code 5261.

Under Diagnostic Code 5257 for other impairments of the knee, a 30 percent rating applies if there is severe recurrent subluxation or lateral instability.  A 20 percent rating applies if there is moderate recurrent subluxation or lateral instability, and a 10 percent rating applies if there is slight recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257.

The VA's General Counsel (GC) concluded that a veteran who has arthritis and instability in his knee may receive separate ratings under Diagnostic Codes 5003 and 5257.  See VAOPGCPREC 23-97.  Also, a separate rating for limitation of extension and for limitation of flexion may be assigned.  VAOPGCPREC 9-2004.  In other words, the rating schedule allows for a separate rating under Diagnostic Code 5257 for subluxation or lateral instability of the knee, whether it be slight, moderate or severe, in addition to ratings under Code 5260 for limitation of flexion and Code 5261 for limitation of extension, if warranted by the evidence.

Pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995), if functional loss is alleged due to pain, or if the service-connected disability involves a joint rated on limitation of motion, further analysis is required.  The Board must go beyond the rating formula and consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, lack of endurance, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45.  See 38 C.F.R. § 4.59.

Under 38 C.F.R. § 4.40, a 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.  It is essential that ratings are based on examinations that adequately portray the anatomical damage, and the functional loss with respect to all of those elements.  Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Id.  But see Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute functional loss).  A part of the musculoskeletal system that becomes painful on use must be regarded as seriously disabled.  Weakness must be considered as important as limitation of motion, and a little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.  38 C.F.R. § 4.40.

Under 38 C.F.R. § 4.45, because the factors of disability for joints reside in reductions of their normal excursion of movements in different planes, an evaluation of joints must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, and incoordination.  It must also consider pain on movement, swelling, deformity or atrophy of disuse and the related considerations of instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing.  38 C.F.R. § 4.45.

Under 38 C.F.R. § 4.59, painful motion is an important factor of disability with any form of arthritis, and actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.

The pertinent record evidence includes a December 2009 referral letter from a physician; a January 2010 VA examination; VAOPC treatment records from January through June 2010; the Veteran's May 2011 substantive appeal; and a September 2012 VA examination.  The Board finds nothing in the record indicating that the current record evidence is not adequate for rating purposes.  

A December 2009 x-ray report of the Veteran's knees showed that there was no evidence of fracture or subluxation in the knees and no evidence of meniscal calcification or loose bony fragments in the knee joint.  It also indicates that the patellofemoral and knee joint spaces were maintained and no soft tissue abnormality was seen in the suprapatellar region and popliteal fossa.  The impression was that the Veteran had normal knees.

A January 2010 VA examination report regarding the severity of his patellar tendonitis shows that the Veteran reported that his symptoms began in 1988 after running.  The Veteran also reported having symptoms of pain, stiffness, weakness, locking, and giving way that had gotten worse since the onset of his patellar tendonitis.  He reported that he had flare-ups during which his symptoms increased and became moderately severe to severe after prolonged standing, sitting, bending, or walking for up to 24 hours, depending on the activity, and were alleviated by rest.  He estimated that his flare-ups moderately or severely impaired his daily activities.  He did not have inflammatory arthritis or a history of neoplasms and had not had episodes of dislocation or any recurrent subluxation or movement of bones.  He indicated that he was not receiving treatment or using ambulatory aids or a prosthesis and that several episodes had required arthrocentesis, but he had not been hospitalized or undergone surgery.  

A physical examination showed that the Veteran's left knee range of motion was 0-140 degrees of flexion and 0 degrees of extension and involved pain initially and upon repetition, but that there was no additional loss of degree or limitation of motion after repetitive use.  He demonstrated pain and painful motion, but not fatigue, weakness, lack of endurance, incoordination, instability, abnormal movement, guarding of movement, edema, or effusion.  His gait was normal; there was no joint instability; there were no demonstrated functional limitations on standing and walking and no signs of abnormal weight-bearing; and an X-ray of the knee was normal.  There was no ankylosis of the knee joint, ligaments were normal, and McMurray's Tests for his medial and lateral meniscuses were negative.  The VA examiner diagnosed the Veteran with bilateral knee traumatic patellar tendonitis and bilateral knee chronic strain.  Regarding the Veteran's employment, the VA examiner noted that the Veteran had reported that he was limited in walking or standing and that his knee periodically bothered him, but not that much, and that he had lost two days of work due to knee and low back pain.

In January 2010 VAOPC treatment records, the Veteran complained of knee pain, reported a pain score of six out of ten, and indicated that he took ibuprofen.  He was fully ambulatory and walked without assistive devices and was assessed with knee arthralgias, a left knee condition where it gives out at times, and tendon inflammation.  The plan for his left knee was to take X-rays, obtain an orthopedic consult, try a hinged knee brace, and take ibuprofen as needed.  

In May 2010 VAOPC treatment records, the Veteran ambulated with a non-antalgic gait and required no external support.  

A September 2012 general VA examination report for purposes of determining whether the Veteran was entitled to a total disability rating based on individual unemployability (TDIU) indicates that the Veteran reported that a 2010 X-ray of his knees was normal; that he received follow-up treatment at the El Paso VAOPC; that he took Tylenol; and that he had constant knee pain, especially from prolonged sitting, standing, walking, going up and down stairs, and carrying things over five pounds; but he did not report having flare-ups that impacted the function of his knee.  His initial range of motion was 0-90 degrees of flexion and 0 degrees of extension.  He had pain on palpation and painful motion beginning at 90 degrees of flexion, but did not have painful motion on extension and there was no additional loss in degree or limitation after repetitive use.  He demonstrated less movement than normal, weakened movement, and pain on movement, but had normal strength with flexion and extension and normal joint stability and did not use any assistive devices or prosthesis.  Imaging studies of the knee did not show degenerative or traumatic arthritis; there was no evidence of recurrent patellar subluxation or dislocation; and he had never had a meniscal condition or meniscectomy or other knee surgery.  The VA examiner assessed the Veteran with bilateral patellar tendonitis of the knees and opined that it had a moderate effect on physical and sedentary employment because it caused constant bilateral knee pain, especially from prolonged sitting, standing, walking, and going up and down the stairs.  

The Board finds that the Veteran's left knee patellar tendonitis does not warrant a disability rating higher than 10 percent.  While the Veteran demonstrated some limitation of flexion during the September 2012 VA examination, he did not have limitation of flexion severe enough to even warrant the currently assigned 10 percent.  Further, he did not demonstrate limitation of extension during either the January 2010 or the September 2012 VA examinations.  38 C.F.R. § 4.71a, Diagnostic Codes 5260-61.

Further, the Board has considered whether there is functional impairment beyond the Veteran's level of actual limitation of flexion and/or extension.  See DeLuca, 8 Vet. App. 202; 38 C.F.R. §§ 4.40, 4.45.  

The Board finds that the Veteran did not demonstrate functional impairment beyond his level of actual limitation of motion because, despite having constant pain after flare-ups; pain on motion beginning at 90 degrees of flexion; demonstrating weakness; having reported interference with sitting and standing; and needing to rest after flare-ups, evidence in the record shows that he was fully ambulatory with a normal gait, normal strength and normal coordination; he did not objectively demonstrate incoordination, fatigability, or lack of endurance, or functional limitations on standing and walking; he did not have disturbances of locomotion, require external support to walk, or demonstrate interference with weight-bearing; and he did not show an additional decrease in degree or limitation of motion upon repetition throughout the entire period on appeal.  

During the January 2010 examination, the Veteran reported having stiffness, weakness, locking, giving way, and flare-ups that moderately or severely impacted his daily activities for up to 24 hours after prolonged standing, sitting, bending, or walking; that he was limited in walking and standing; and that his knees bothered him periodically, but not that much.  He objectively demonstrated pain and painful motion, but the January 2010 VA examiner found, however, that his gait was normal; he did not objectively demonstrate functional limitations on standing and walking; he did not demonstrate fatigue, weakness, lack of endurance, incoordination, joint instability, abnormal movement, guarding of movement, or abnormal weight-bearing; and there was no additional loss of degree or limitation of motion after repetitive use.  January 2010 VAOPC treatment records show that the Veteran rated his pain as 6 out of 10 but was fully ambulatory and did not need external support to walk, and May 2010 VAOPC treatment records show he had a non-antalgic gait and again did not need external support to walk.  During the September 2012 VA examination, the Veteran reported having constant knee pain after prolonged sitting, standing, walking, going up and down stairs, and carrying things over five pounds, but did not report flare-ups.  He objectively demonstrated pain and painful motion beginning at 90 degrees of flexion; less movement than normal; and weakened movement, but the September 2012 VA examiner also found that he demonstrated no pain on extension, normal strength with flexion and extension, and normal joint stability; that he did not need external support to walk; and that there was no additional loss of degree or limitation of motion after repetitive use.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute functional loss).

Consideration has also been given to assigning a disability rating under another diagnostic code.  Other diagnostic codes relating to the knee are Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (recurrent subluxation or lateral instability), Diagnostic Codes 5258 and 5259 (symptomatic dislocation and/or removal of semilunar cartilage), Diagnostic Code 5262 (impairment of tibia and fibula) and Diagnostic Code 5263 (genu recurvatum).  However, there is no evidence that the Veteran has ankylosis in his left knee or that he experiences recurrent subluxation or instability; symptomatic dislocation and/or removal of semilunar cartilage in either knee; has any impairment of the tibia or fibula in his left leg; or that there is genu recurvatum in his left knee.  Therefore, a disability rating under a separate diagnostic code is not warranted.  38 C.F.R. § 4.71a, Diagnostic Codes 5256-59, 5262-63 (2013).  Additionally, the Board notes that the Veteran's major functional impairment in his left knee is pain.  A disability rating based on pain on motion under more than one diagnostic code would be in violation of 38 C.F.R. § 4.14.

The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his left knee patellar tendonitis.  The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects.  Specifically, the Veteran asserted in his September 2010 NOD that he "meet[s] these requirements" and "meet[s] ROM."  Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes.  Jandreau v. Nicholson, 492 F.3d 1372, 177 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011).  However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.159(a)(2); Davidson v. Shinseki, 581 F.3d 1313 (2009); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  While the Veteran is competent to report his symptoms, including pain and weakness, in this case, he is not competent to provide the specific finding that his range of motion was limited to a specific degree, as there is no suggestion that this figure was not obtained via objective testing.  In addition, VA prescribes that the use of a goniometer is indispensable in obtaining accurate measurement of limitation of motion.  38 C.F.R. § 4.46 (2013).  The competent medical evidence is therefore the most probative regarding the evaluation of pertinent symptoms for the disability on appeal, as it offers specialized, specific, and detailed determinations pertinent to the rating criteria and largely contemplates the Veteran's descriptions of symptoms.  The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.

After examining all the evidence, the Board finds that the currently assigned 10 percent rating for the Veteran's left knee patellar tendonitis is appropriate, and concludes that the weight of the evidence is against assigning a rating in excess of 10 percent.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5024, 5256-59, 5260-63. 

Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating.  Hart, 21 Vet. App. at 511-512.  The Board acknowledges that during the January 2010 VA examination, the Veteran reported painful flare-ups and finds the Veteran generally competent to report that he experiences additional pain and limited motion during his flare-ups that the impaired his daily activities.  Jandreau, 492 F.3d at 1376-77.  The Board notes, however, that during the January 2010 VA examination he reported that the flare-ups lasted for at most 24 hours; that his knee periodically bothered him, but not that much; and that his pain was alleviated with rest.  In addition, during the September 2012 VA examination the Veteran did not report having flare-ups that more severely impacted the function of his knee. 

The Board also finds that the claim does not need to be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1).  In this regard, the Board must refer a claim if (1) a service-connected disability presents such an exceptional disability picture that the available schedular ratings do not reasonably describe or contemplate the severity and symptomatology of the disability, and (2) the disability picture exhibits other factors, such as marked interference with employment and frequent periods of hospitalization.  Thun v. Peake, 22 Vet. App. 111, 115-116 (2008).  

In this case, the Veteran's disability picture is not exceptional or unusual.  The competent objective medical evidence of record reflects that the schedular criteria contemplate the manifestations of the Veteran's service-connected left knee patellar tendonitis, and there is no indication that the average disability would be in excess of that contemplated by the assigned 10 percent disability rating.  The Board acknowledges that during the September 2012 VA examination the Veteran reported that his pain after prolonged sitting, standing, walking up and down stairs, or carrying things heavier than five pounds moderately or severely impacted his daily activities and recognizes that the Veteran currently has a disability rating of a TDIU, but notes that the September 2012 VA examiner opined that his left knee patellar tendonitis had only a moderate impact on physical and sedentary employment, and that during the January 2010 VA examination the Veteran reported only missing two days of work due also in part to a low back disability.  Further, the record does not show frequent hospitalizations or emergency room visits for the Veteran's service-connected left knee patellar tendonitis and there is no evidence of incapacitating episodes.  

Accordingly, the referral of this case for extraschedular consideration is not in order.


ORDER

Entitlement to a disability rating in excess of 10 percent for left knee patellar tendonitis is denied.   


REMAND

The Veteran contends he is entitled to service connection for a right shoulder disability incurred while playing racquetball for mandatory physical fitness during active service.  See, e.g., September 2010 notice of disagreement (NOD).

The Board remands the claim on appeal for additional development because the VA medical examiner's opinion is inadequate.  

"[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  An adequate medical opinion must consider the veteran's prior pertinent medical history and include clear conclusions, supporting data, and a reasoned medical explanation.  Barr, 21 Vet. App. at 311.  

In May 2010, VA provided the Veteran an examination to determine whether he had a current diagnosis of a right shoulder disability and, if so, whether a possible nexus existed between any current right shoulder disability and the Veteran's active service.  The examiner assessed the Veteran with degenerative joint disease in the right shoulder and opined that it was less likely than not caused by or a result of injury in service.  The VA examiner stated that there was one complaint in the claims file related to the right shoulder, one mention of it in the medical history section of a post-service VA treatment record, and that no other complaints related to the right shoulder were found in the post-service treatment records.  As a rationale, the examiner stated that the opinion was "[b]ased on the documents reviewed."  

The Board finds this opinion inadequate for several reasons.

First, the opinion is inadequate because it ignores prior pertinent medical evidence and is therefore based on an inaccurate medical history.  The VA examiner's rationale inaccurately states that post-service VA Outpatient Clinic (VAOPC) records were silent for any complaints related to the right shoulder.  In fact, January 2010 VA Outpatient Clinic (VAOPC) treatment records show the Veteran complained of right shoulder pain with some numbness in the arms and that he was assessed with right shoulder arthralgia.  In addition, the May 2010 VA examination report itself contained the results of a January 2010 X-ray that showed minimal degenerative changes at the acromioclavicular joint, as well as the results of a May 2010 MRI that showed a partial-thickness articular surface tear of the supraspinatous tendon without retraction and hypertrophic degenerative change with spurring and impingement on the myotendinous junction of the supraspinatous tendon.  Since the VA examiner's rationale appears to be based on the absence of complaints related to the right shoulder in VAOPC records, it is especially pertinent that these records were not addressed.

Second, the rationale does not contain clear medical reasoning.  While the May 2010 VA examiner cited to a review of the treatment records in support of her rationale, the Board finds that the basis for the opinion is still unclear.  In addition, November 1985 service treatment records (STRs) reveal that the Veteran complained of right shoulder pain from striking a wall while playing racquetball and was assessed with acromioclavicular joint strain.  The May 2010 VA examiner assessed the Veteran with degenerative joint disease in the right shoulder and inaccurately cited to the absence of complaints from post-service medical records, but did not provide medical reasoning that clarifies why his current diagnosis does not relate to the 1985 assessment.  

Third, the May 2010 VA examiner appeared to disregard lay testimony regarding the worsening of a right shoulder disability since separation from service.  The May 2010 VA examination report indicates that the Veteran reported that his right shoulder disability began in 1989 and that it became progressively worse over time.  The May 2010 VA examiner's opinion does not appear to address the Veteran's statement regarding the continuity of his symptoms and the development of a right shoulder disability.  The VA examiner was not free to disregard the Veteran's lay statements.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion).  

The Board therefore finds VA should provide the Veteran with an addendum opinion on the basis of direct service connection.  

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1. Undertake appropriate development to obtain any outstanding, pertinent medical records identified by the Veteran, to include from the VAOPC in El Paso, Texas.  All attempts to obtain these records should be associated with the claims file.

2. Then, provide the Veteran with a VA examination, by an examiner with sufficient expertise, to determine the nature and etiology of any right shoulder disability.  Provide the examiner with the claims file, including any pertinent evidence in Virtual VA that is not already in the claims file.  The examiner should review the claims file and perform all indicated studies.

The examiner should provide an opinion, based on examination results and the record, regarding whether it is at least as likely as not (a 50 percent or greater probability) that any current right shoulder disability had its onset in or is otherwise etiologically related to the Veteran's active service.  

The opinion must consider all pertinent medical history as well as any competent lay evidence and contain both a detailed description of the disabilities and a complete medical rationale.  The examiner is reminded that the Veteran is competent to report about factual matters about which he had firsthand knowledge, including experiencing symptoms during or after service, reporting to sick call, and undergoing treatment.

3. The RO or AMC should undertake any additional development it deems warranted.

4. Then, the RO or AMC should readjudicate the claim on appeal.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should receive a Supplemental Statement of the Case and an opportunity to respond.  If necessary, the case should then be returned to the Board for further appellate action.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs