Citation Nr: 1336796 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-17 155 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased rating for the service-connected degenerative joint disease (DJD) of the left knee with sprain on the basis of limitation of motion, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for the service-connected left knee disability on the basis of instability, to include the propriety of the reduction of the rating from 10 to no percent, effective on December 1, 2009. 3. Entitlement to service connection for a lumbar spine strain with a history of scoliosis and degenerative disease as secondary to the service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1989 to September 1991. The Veteran had additional service in the Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2009 and September 2009 rating decisions of the RO. The Board notes that the Veteran was initially represented by the Veterans of Foreign Wars, but he changed his representation to Disabled American Veterans in February 2009. The appropriate VA forms are associated with the claims file and the Board acknowledges this change. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that the Veteran's representative service organization filed an Appellant's Brief on the Veteran's behalf . The remaining documents are either duplicative or irrelevant to the issues on appeal. The issue of service connection for a lumbar spine disorder is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The service-connected left knee disability is shown to be productive of painful, but full range of motion. 2. The reduction in the rating for the service-connected left knee disability was based on an examination that was less full and complete for the purpose of determining that the instability of the left knee had improved. 3. The service-connected left knee disability is not shown to be productive of more than mild instability. CONCLUSIONS OF LAW 1. The criteria for the assignment of an evaluation in excess of 10 percent for the service-connected left knee disability on the basis of limitation of motion have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a including Diagnostic Codes 5003, 5010, 5260 (2013). 2. The reduction of the 10 percent rating for the service-connected left knee disability on the basis of instability was not proper and is void by law. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.344, 4.1-4.14, 4.40-4.45, 4.71a Diagnostic Code 5257 (2013). 3. The criteria for the assignment of an evaluation in excess of 10 percent for the service-connected left knee disability on the basis of instability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a including Diagnostic Code 5257 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice should be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, VA's duty to notify has been satisfied with respect to the issue of a higher evaluation for the service-connected left knee DJD and instability disorder through the notice letter sent to the Veteran in March 2009. The Board notes that the RO reduced the rating for the service-connected left knee disability on the basis of instability from 10 percent to no percent in its September 2009 rating decision. While the Veteran's representative service organization stated that this disorder was currently evaluated as 10 percent disabling in its Appellant's Brief, the Board finds that the proper notice regarding the reduction was provided to the Veteran and his representative (DAV) by the RO. The RO issued a letter to the Veteran and DAV in June 2009 wherein it proposed a reduction for both left knee disorder claims because it determined that the records revealed an improvement in the Veteran's condition. The RO then issued a rating decision in September 2009 that formally reduced the rating. Notice was sent to the Veteran and DAV informing them of this reduction. The Board finds that the RO sufficiently notified the Veteran and DAV of this reduction. In addition, the duty to assist the Veteran has also been satisfied in this case. All identified and available service treatment records and post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any outstanding records that are relevant to the issues being decided herein. In addition, the Veteran was afforded a VA contract examination in March 2009 in connection with his left knee disability. In his November 2009 Notice of disagreement, the Veteran asserted that the March 2009 VA contract examination was inadequate in that the examiner did not spend enough time with him and barely touched his leg. The Veteran also stated that he did not remember receiving knee stability testing. A review of the March 2009 VA contract examination report shows that the examiner evaluated and interviewed the Veteran. However, it is unclear whether the Veteran's claims file was reviewed in connection with the examination. The examiner reported the results of testing for range of motion and stability and reviewed x-ray studies. Moreover, while the Appellant's Brief states that the Veteran's condition has worsened in pain and range of motion and contends that a new VA examination is required, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. 38 C.F.R. § 3.327(a). 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. VAOPGCPREC 11-95. Law and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability (during the rating period) that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis The Veteran seeks an increased evaluations for the service-connected left knee disability on the basis of limitation of motion and instability. The RO granted service connection for a left knee disability and assigned a noncompensable evaluation in a March 1992 rating decision. In February 2005, the RO assigned separate 10 percent rating for the service-connected left knee disability of the basis of limitation of motion and instability, effective on November 22, 2004. In a June 2009 rating decision, the RO proposed to reduce these 10 percent ratings to no percent and notified the Veteran of his 60 day rebuttal period. In a September 2009 rating decision, the RO continued the 10 percent assigned on the basis of limitation of motion and formally reduced rating assigned on the basis of instability from 10 percent to no percent, effective on December 1, 2009. The service-connected left knee disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5010-5024. DC 5010 mandates that the Veteran's left knee DJD disorder claim be evaluated as degenerative arthritis. DC 5003, (for degenerative arthritis), in turn, evaluates disabilities based upon the degree of limitation of motion under the appropriate DCs. If the disability is noncompensable under the appropriate DC, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, DC 5003. Limitation of motion needs to be objectively shown by findings such as swelling, muscle spasm, or painful motion. Id. Under Diagnostic Code 5257, a knee impairment with recurrent subluxation or lateral instability is rated at 10 percent when slight, at 20 percent when moderate and at 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Limitation of motion of the knees is evaluated under DCs 5260 and 5261. Under DC 5260, a noncompensable evaluation is assigned when flexion is limited to 60 degrees. A 10 percent disability rating is warranted when flexion is limited to 45 degrees. A 20 percent evaluation is warranted when flexion is limited to 30 degrees and a 30 percent disability rating is warranted when flexion is limited to 15 degrees. Under DC 5261, a noncompensable evaluation is assigned when there is extension limited to 5 degrees. A 10 percent disability rating is warranted when extension is limited to 10 degrees, a 20 percent disability rating is for assignment when extension is limited to 15 degrees and a 30 percent disability rating is for assignment when extension is limited to 20 degrees. A 40 percent disability rating is warranted when extension is limited to 30 degrees and a 50 percent disability rating is warranted when extension is limited to 45 degrees. The Board must also consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion DCs. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The VA General Counsel has issued a precedential opinion holding that separate ratings may be assigned under DC 5260 and DC 5261, "where a Veteran has both a limitation of flexion and a limitation of extension of the same leg;" "limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg." See VAOPGCPREC 9-2004 (September 17, 2004). Additionally, under VAOPGCPREC 23-97, the Veteran may be assigned separate ratings for arthritis with limitation of motion under DC 5003 and for instability under DC 5257. See VAOPGCPREC 23-97 (July 1, 1997). The Veteran was afforded a VA contract examination in March 2009. At that time, he reported having constant, localized pain that was burning, aching, sharp and sticking. He rated his pain as a 6 on a scale of 1 to 10 and reported that it was elicited by physical activity and sitting. He reported being able to function with pain. The Veteran also noted having weakness, stiffness and lack of endurance. He reported having no hospitalizations or surgeries, swelling, heat, redness, giving way, locking, fatigability or dislocation. The Veteran noted that he needed to move more slowly and take pain medication as a result of his left knee disorder. Upon examination, the examiner noted that the Veteran's posture and gait were within normal limits. Tenderness of the left knee was found, but there were no signs of edema, effusion, weakness, redness, heat, guarding of movement, subluxation, locking pain, genu recurvatum or crepitus. The examiner noted the Veteran's range of motion as being flexion to 140 degrees and extension to 0 degrees. Joint function was not limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The examiner also reported performing stability testing of the anterior and posterior cruciate ligaments, the medial and lateral collateral ligaments, and the medial and lateral meniscus. All testing was reported to be within normal limits. The examiner also noted that the Veteran's left leg was 4 centimeters shorter than the right, requiring him to wear corrective shoes. The X-ray studies revealed degenerative arthritic changes. The examiner diagnosed the Veteran with DJD of the left knee with left knee sprain and reported that the left knee disorder did not affect his occupation, but added that he could not play sports. The March 2009 examiner subsequently provided an addendum opinion with regard to the disparity in the Veteran's leg lengths. The examiner opined that the discrepancy in leg length was not due to the DJD of the left knee, but that it was more likely than not that the leg length discrepancy aggravated the DJD and was not the result of the DJD in the left knee. In July 2009, the VA medical records showed that the Veteran reported to VA for a flare up of knee pain. He reported having pain as a 3 on a scale of 1 to 10 and was referred for an appointment. The Veteran was seen by a private doctor in July 2009 for knee pain. Dr. G.L. found mild to moderate tenderness, stiffness and soreness of the medial, lateral and patella areas of the left knee. He found no collateral ligament stability, effusion or limited range of motion and noted that the Veteran walked without a limp. The drawer and McMurray testing was negative. The physician diagnosed the Veteran with mild DJD - "[might] be chondromalacia or internal derangement" and noted that he would review the Veteran's prior magnetic resonance imaging report (MRI). In August 2009, the Veteran reported back to VA in order to obtain an MRI for his left knee. This request was denied because the doctor reviewing this request felt that it was not warranted on clinical grounds, as the Veteran wanted the MRI for review in connection with his benefit claims. This doctor requested more information if there was "more to the story." In November 2009, the Veteran was again seen by Dr. G.L. for left knee pain. At this visit, Dr. G.L. noted that the Veteran's straight leg raising test was negative, bilaterally. He found mild soreness and a full range of motion of the left knee. The knee was noted to be stable to valgus to varus stress. Drawer testing was negative; however, McMurray testing was noted to be "equivocal." Dr. G.L. opined that the Veteran had DJD of the left knee with partial anterior cruciate ligament tear. He also opined that the Veteran should obtain a current MRI in order to assess the knee for internal derangement. In March 2010, the Veteran reported having increased pain and occasional locking to VA. He was again noted to have an adequate range of motion and a steady gait. The service-connected left knee disability does not warrant an increased rating on the basis of limitation of motion. Degenerative arthritis will be rated on the basis of limitation of motion per DC 5003 and 5010. The Veteran's range of motion of his left knee was evaluated over the course of the appeal, but he was noted to have a full range of motion. While the 10 percent rating was continued by the RO in its September 2009 rating decision, this was based on painful motion due to the left knee DJD under DC 5003. Because the Veteran had a full range of motion, a rating higher than 10 percent under DC 5260 or 5261 is not assignable. The service-connected left knee disability based on instability also was assessed several times over the course of this appeal. The VA examination in 2009 reported normal stability testing of the left knee stability, and the RO used these findings to reduce the 10 percent rating to noncompensable based on the absence of instability or recurrent subluxation. However, the private medical statement from November 2009 submitted in response to the proposed reduction noted that the Veteran had DJD of the left knee with a partial ACL tear and an "equivocal" McMurray's. The physician also indicated that he should have an MRI to assess knee for internal derangement. To the extent that the RO based the reduction on absence of instability or subluxation, the evidence as a whole tends to suggest that the VA examination was less full and complete for the purpose of reducing the rating for the service-connected left knee disability. As such, based on this record, the Board finds that the reduction was improper and is void ab initio. The Veteran's wife submitted a statement in March 2009 stating that the he was in constant pain. She noted that he limped at the end of the day and required insoles for his shoes. The Veteran also testified that his pain increased during the day and that a discrepancy in the length of his legs was not present during service. However, the Veteran has already been compensated for his DJD based on painful motion. There are no basis for the assignment of a rating based solely for the Veteran's complaints of pain. The Board also notes that it has referred the issue of service connection for the discrepancy in the length of the Veteran's legs for development. The March 2009 VA contract examiner opined that this discrepancy was not due to the Veteran's DJD, and the Board will not consider this discrepancy as a factor for an increased rating for the service-connected left knee DJD. Based upon guidance by Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has also considered whether a staged rating is appropriate. In the present case, the Board finds the symptoms have been constant throughout the period of the appeal. Indeed, when the Veteran reported to the VA medical center for a flare up in July 2009, he reported less pain (a 3 out of 10) than at his VA contract examination (a 6 out of 10). The Veteran's left knee disorders do not warrant an increase rating for any period of time during his appeal. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, in order to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In the present case, the Veteran's symptoms include pain in the left knee. The schedular criteria specifically contemplates painful range of motion. As all of the Veteran's symptoms are contemplated by the applicable Diagnostic Code, the Board finds the schedular criteria are adequate. To the extent that the March 2009 VA contract examiner opined that the Veteran's leg length discrepancy was not due to the service-connected DJD, this disorder is not an appropriate factor for evaluation of the service-connected left knee DJD. Therefore, referral for the assignment of an extraschedular disability rating is not warranted. The Board also notes that the record does not show that the Veteran's left knee disorders prevent him from obtaining or retaining employment. Therefore, the issue of a total disability rating based on individual unemployability by reason of service-connected disability has not been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER An increased rating evaluation in excess of 10 percent for the service-connected degenerative joint disease of the left knee with sprain on the basis of limitation of motion is denied. As the reduction of the rating for the service-connected left knee disability on the basis of instability was not proper, the 10 percent rating is restored. An increased rating in excess of 10 percent for the service-connected left knee disability with instability is denied. REMAND The Veteran was afforded a VA contract examination in April 2009 in connection with his claim of service connection for a lumbar spine disorder. However, the Board finds that the examiner did not provide an opinion as to the likely etiology of the claimed lumbar spine disorder. Barr, 21 Vet. App. at 312. The examiner also did not provide an opinion regarding the Veteran's scoliosis, which was noted in his service treatment records, to include his entrance examination. Therefore, the Board finds that an additional VA examination is necessary. Accordingly, this remaining matter is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to have him provide the names and addresses of all health care providers who have treated him for his claimed lumbar spine disorder. After obtaining any necessary authorization, the RO should undertake to obtain copies of the identified records and them with the claims file. 2. The RO then should have the Veteran scheduled for a VA examination to ascertain the nature and likely etiology of the claimed lumbar spine disorder. All indicated studies, tests, and evaluations deemed necessary by the examiner should be performed. After examining the Veteran and reviewing the entire record, the examiner should opine as to whether it is at least as likely as not that any current lumbar spine disability had its clinical onset during service or is due to an injury or other event of that service or otherwise was caused or aggravated by the service-connected left knee disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) The examiner should also provide an opinion as to: (a) Whether the evidence of record clearly and unmistakably shows that the Veteran had scoliosis prior to his entry to active duty in March 1989? (b) If the answer to (a) is yes, does the evidence of record clearly and unmistakably show that the scoliosis was not aggravated by service? A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs