Citation Nr: 1336762 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 09-23 095A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for a right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. E. de Jong, Associate Counsel INTRODUCTION The Veteran (appellant) served on active duty from February to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the RO in Atlanta, Georgia, which granted service connection for the Veteran's right knee disability and assigned a disability rating of 10 percent, effective April 2007. The Board notes that the RO issued a decision in June 2009 that confirmed the 20 and 10 percent ratings that were assigned for the Veteran's left knee disability. She was sent a Statement of the Case (SOC) on those issues in July 2009, which was contemporaneous with the SOC that was sent to her addressing her right knee claim. A substantive appeal (VA Form 9) was received from the Veteran in July 2009. On that form, she checked box (A) in section 9 indicating that she wished to appeal all issues on the statement of the case that had been sent to her. However, in section 10 of the VA Form 9, her argument was limited to the claim for an increased rating for her right knee disability. She referenced the SOC on that issue. No argument was made with respect to her left knee. Recognition is given to the fact that the United States Court of Appeals for Veterans Claims (Court) held that a claimant who checked the box on VA Form 9 indicating the desire to appeal all claims listed in statement of the case (SOC) (box A of section 9) did not limit those claims before the Board of Veterans' Appeals by specifying on Form 9 arguments as to some, but not all, the claims presented in the SOC. See Evans v. Shinseki, 24 Vet. App. 292 (2011). However, as opposed to being sent a single SOC that addressed multiple issues, which was the case in Evans, the Veteran in the present case was sent two SOCs. The VA Form 9 submitted by the Veteran addressed the findings of the SOC pertaining to the right knee. No reference was made to the left knee. In other words, she received two SOCs but only appealed the findings of one. The scope of appeal is thereby limited to the right knee issue. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" and VBMS systems to insure a total review of the evidence. FINDINGS OF FACT 1. Even in consideration of her complaints of pain and functional loss, the Veteran's service-connected right knee arthritis has not been manifested by flexion limited to 60 degrees or less, extension limited to 5 degrees or less, ankylosis, impairment of tibia or fibula, genu recurvatum, or subluxation or lateral instability. 2. The schedular criteria are adequate to rate the Veteran's service-connected right knee arthritis. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for right knee arthritis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256-5263 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Rating The Veteran contends that she is entitled to an initial disability rating higher than 10 percent for her right knee arthritis because she experiences chronic pain, has an abnormal gait, and experiences limitations standing and walking due to her right knee condition. The Board notes that the Veteran was granted service connection for her right knee arthritis as secondary to her service-connected left knee disability. For the reasons that follow, the Board finds that an initial evaluation in excess of 10 percent for right knee arthritis is not warranted. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2013). The Veteran's right knee arthritis is rated under Diagnostic Code (DC) 5003 as 10 percent disabling. DC 5003 specifies that 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. See 38 C.F.R. § 4.71a, DC 5003. 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, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The criteria for ratings on limitation of motion of the knee are in two groups, limitation of flexion and limitation of extension. Limitation of flexion of a leg warrants a noncompensable evaluation if flexion is limited to 60 degrees, a 10 percent evaluation if flexion is limited to 45 degrees, a 20 percent evaluation if flexion is limited to 30 degrees or a 30 percent evaluation if flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a , DC 5260. Limitation of extension of a leg warrants a noncompensable evaluation if extension is limited to 5 degrees, a 10 percent evaluation if extension is limited to 10 degrees, a 20 percent evaluation if extension is limited to 15 degrees, a 30 percent evaluation if extension is limited to 20 degrees, a 40 percent evaluation if extension is limited to 30 degrees or a 50 percent evaluation if extension is limited to 45 degrees. See 38 C.F.R. § 4.71a , DC 5261. Separate ratings may be awarded for limitation of flexion and limitation of extension of the same knee joint. VAOPGCPREC 09-04 (Sept. 17, 2004). The Veteran was afforded a January 2008 VA examination in connection with her claim for right knee arthritis. On examination, the Veteran was found to have flexion to 100 degrees and extension to 0 degrees in her right knee. The Veteran was afforded another VA examination in June 2008. She was again found to have flexion to 100 degrees and extension to 0 degrees in her right knee. VA and non-VA records show that the Veteran was evaluated for complaints of right knee symptomatology. However, none of those records or reports include specific range of motion findings regarding the Veteran's right knee. As the Veteran has neither flexion limited to 60 degrees or less nor extension limited to 5 degrees or less, she is not entitled to a disability rating under DC 5260 and/or DC 5261 for her right knee arthritis. The Veteran has already been assigned a 10 percent rating for painful motion in her right knee. Another rating under DC 5003 is not warranted. The Veteran reports that her right knee gives way daily. She argues that she has experienced numerous falls as a result of her right knee has given way. VA's General Counsel has provided guidance concerning increased rating claims for knee disabilities. See VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). In VAOPGCPREC 23-97, it was held that a veteran who has arthritis and instability of the knee might be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating must be based upon additional disability. Knee ligament instability and patellar subluxation are rated under DC 5257. 38 C.F.R. § 4.71a, DC 5257. A 10 percent rating requires slight recurrent subluxation or lateral instability of a knee. A 20 percent rating requires moderate subluxation or lateral instability of a knee. A 30 percent evaluation is warranted for severe knee impairment with recurrent subluxation or lateral instability. Id. Subluxation of the patella is "incomplete or partial dislocation of the knee cap." Rykhus v. Brown, 6 Vet. App. 354, 358 (1993) (citing Dorland's Illustrated Medical Dictionary at 1241, 1599 (27th edition 1988)). In rating instability, the Board observes that the words "slight," "moderate," and "severe," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. At both the January 2008 and June 2008 VA examinations, the Veteran was found to have anterior and posterior cruciate ligament stability within normal limits for her right knee. She was also found to have medial and lateral collateral ligament stability within normal limits for her right knee. The record contains no other stability test findings regarding the Veteran's right knee. An October 2001 University Hospital general evaluation for physical therapy contains a note of medial and lateral laxity in the right knee. However, a physical examination performed at University Hospital a few days earlier found the Veteran's right knee medial and lateral ligaments to be strong. The Board finds that the Veteran does not have instability of the right knee rising to a "slight" level. The Veteran is competent to complain of give-way, but no supporting evidence was found on repeated medical examination. Where instability exists, the Board expects that some objective sign would be detectable to reach a level which is "slight" for ratings purposes. The Board finds that the medical evidence outweighs the Veteran's subjective complaint of give way. The criteria for a rating based on ligament instability or patellar subluxation under DC 5257 are not met. In the present case, 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. Both VA examinations indicated that the Veteran was additionally limited due to pain, weakness, and fatigue. However, in both instances, the examiners stated that there was no additional loss of range of motion after repetitive use. Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Indeed, in assigning the current 10 percent rating under DC 5003, the Veteran's complaints of pain, stiffness, fatigue, weakness, and lack of endurance were duly considered. Additional Diagnostic Codes provide for additional ratings for disabilities of the knee depending on the symptoms shown. Since the record does not show that the Veteran's right knee arthritis involves ankylosis, semilunar cartilage dislocation or removal, tibia or fibula impairment, or genu recurvatum, additional ratings for the Veteran's right knee arthritis are not warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5758, 5259, 5262, 5263. Based on the above, the Board finds that no higher rating is warranted under the General Ratings Formula. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256-5263 (2013). The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). 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. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The schedular evaluation for the Veteran's right knee is not inadequate. The Veteran has complained of pain, stiffness, weakness and lack of endurance in her right knee, all of which are contemplated by the rating criteria. She does not have any symptoms from her service-connected right knee arthritis that are unusual or are different from those contemplated by the schedular criteria. The Veteran merely disagrees with the assigned evaluation for her level of impairment. The available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, supra. Entitlement to a total disability rating based on individual unemployability (TDIU) is an alternative theory of all claims for a higher disability rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). TDIU may be raised explicitly by a claimant or inferred from the record. An inferred claim for a TDIU is raised as part of an increased rating claim only when certain requirements are met. Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009). TDIU is raised by inference when a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In the present appeal, there is no mention of unemployability by the Veteran, in her VA or private treatment records, or in her VA examination reports. The Board acknowledges that the Veteran has reported having difficulty performing her job as a floor manager for Verizon Wireless due to her multiple service-connected disabilities. However, there is no evidence of record showing that the Veteran is unemployable due to her service-connected disabilities. Her ability to retain her current position for many years despite her difficulties is strong evidence that the Veteran is not unemployable. Thus, the Board concludes that the Roberson requirements are not met and that consideration of TDIU is not warranted. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the possibility of staged ratings. The Board concludes that the criteria for a rating in excess of 10 percent have at no time been met. Accordingly, staged ratings are inapplicable. See id. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial evaluation in excess of 10 percent for right knee arthritis. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim of entitlement to an initial evaluation in excess of 10 percent for right knee arthritis. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). The initial rating appeal arises from a granted claim of service connection. Compliance with the first notice element requires notice of the five service connection elements in initial ratings cases: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dunlap v. Nicholson, 21 Vet. App. 112 (2006). Prior to initial adjudication of the Veteran's claim in April 2008, September 2007 and January 2008 letters fully satisfied the duty to notify provisions, including notice of the degree of disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board also concludes VA's duty to assist in obtaining records has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran an appropriate VA examination in January and June 2008. Both were more than adequate. Both examinations included relevant testing, review of the claims file, and consideration of the Veteran's lay history/complaints. The findings of the examination include information necessary to evaluate the Veteran's claim under the relevant criteria. The Veteran has not reported receiving any recent treatment specifically for this condition (other than at VA and the private treatment mentioned above, records of which are in the file). Although the Veteran's representative stated it is "plausible" that the Veteran's right knee arthritis has increased in severity during the period on appeal, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected right knee arthritis since she was last examined. 38 C.F.R. § 3.327(a). The examination report provides sufficient evidence to apply the ratings schedule and to determine that the schedular rating is adequate to rate the disability. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); see also VAOPGCPREC 11-95. The VA examination reports are thorough and supported by VA outpatient treatment records. The examination in this case is an adequate basis on which to adjudicate the claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). ORDER Entitlement to an initial evaluation in excess of 10 percent for a right knee disability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs