Citation Nr: 1336981 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-15 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right knee arthrofibrosis lateral plica. 2. Entitlement to an initial rating in excess of 10 percent prior to April 12, 2010 and in excess of 20 percent thereafter for the left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2005 to January 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The RO granted service connection for right knee arthrofibrosis lateral plica and left knee disability, both assigned at 10 percent disabling, effective January 16, 2009. This claim was developed as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. The Veteran submitted an April 2010 substantive appeal, via a VA Form 9, and requested a personal hearing before the Board at the RO. A hearing was scheduled for April 2012, but the Veteran did not appear and did not provide any explanation for his absence. Accordingly, his request for a hearing is considered withdrawn, and the Board may proceed with review of the claims. 38 C.F.R. § 20.704(d) (2013). With regard to the service-connected left knee disability, in a March 2011 rating decision, the RO increased the disability rating from 10 percent to 20 percent disabling, effective April 12, 2010. Because the assigned 10 percent and 20 percent disability ratings are not the maximum benefits available for this service-connected disability, the appeal continues for the respective appeal periods. See AB v. Brown, 6 Vet. App. 35 (1993). In April 2010, the Veteran submitted a notice of disagreement (NOD) for the issues of service connection for bilateral shoulder disability and hearing loss in the right ear. In a March 2011 statement of the case (SOC), the RO continued the previous denials for these claims. As of this date, the Veteran has not properly submitted a timely substantive appeal for these issues after issuance of the March 2011 SOC. See 38 C.F.R. § 20.202 (2012). As a result, these issues are not currently before the Board for appellate consideration. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system and the "Virtual Benefits Management System (VBMS)" to ensure a total review of the evidence. The issue of entitlement to an initial rating in excess of 10 percent prior to April 12, 2010 and in excess of 20 percent thereafter for left knee 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. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. For the entire initial rating period on appeal, the service-connected right knee arthrofibrosis lateral plica more closely approximates manifestations of removal of semilunar cartilage, healed post operative scars, limited flexion, at worst, to 130 degrees, and full extension to 0 degrees. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for right knee arthrofibrosis lateral plica have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.171a, Diagnostic Code (DC) 5259 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2013). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2013); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Pursuant to the rating criteria for the knee, the Veteran's service-connected right knee arthrofibrosis lateral plica is rated at 10 percent disabling for the entire initial rating period on appeal. See 38 C.F.R. § 4.71a, DC 5259 (2013). A 10 percent evaluation is warranted for removal of semilunar cartilage. Id. 10 percent is the maximum rating available under this DC. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, with respect to the claim on appeal as required by the United States Court of Appeals for Veterans Claims (Court). See Schafrath, 1 Vet. App. at 594. However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign a rating higher than the currently assigned disability rating for any period on appeal. In the June 2009 rating decision, the RO denied service connection for right knee arthritis. See 38 C.F.R. § 4.71a, DC 5010. Although VA outpatient treatment records reveal his complaints of right knee pain, x-ray findings of the right knee do not show arthritis. Thus, a separate rating for painful motion is not warranted. See 38 C.F.R. § 4.59 (painful motion due to arthritis). In a June 2011 rating decision, the RO granted a separate 20 percent evaluation for mild anterior cruciate ligament (ACL) laxity of the right knee. See 38 C.F.R. § 4.71a, DC 5257. With regard to limitation of motion, flexion of limited to 30 degrees warrants a 20 percent rating; and to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Extension limited to 15 degrees warrants a 20 percent rating; to 20 degrees warrants a 30 percent rating; to 30 degrees warrants a 40 percent rating; and to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. Normal range of motion of the knee is flexion to 140 degrees and extension to 0 degrees. See 38 C.F.R. § 4.71a, Plate II. The evidentiary record shows limited flexion to 130 degrees and full extension at an April 2009 VA general medical examination. At the October 2010 VA general medical examination, the Veteran exhibited full flexion and full extension, providing evidence against this claim. VA outpatient treatment records also show his range of motion of the extremities appeared without restrictions in March 2009. In May 2009, he exhibited limited flexion to 130 degrees and hyperextended to -3 degrees, and a December 2010 record documented full active range of motion of the lower extremities. Thus, a higher rating for limitation of flexion or extension is not warranted under DCs 5260 or 5261. The evidentiary record does not demonstrate findings of joint ankylosis or impairment of the tibia and fibula. Thus, a higher rating for the right knee disability is not warranted under DCs 5256 or 5262. See 38 C.F.R. § 4.71a. As noted above, the Veteran has demonstrated range of motion of the right knee during VA outpatient treatment records and at the April 2009 and October 2010 VA examinations. Both VA examiners also indicated no objective findings of joint ankylosis. The record also does not show semilunar dislocated cartilage of the right knee to warrant a higher rating for the right knee under DC 5258. Id. Nor, during any period, does the evidence show a disability resulting from the right lower extremity, so another, separate, disability rating is not appropriate. Lastly, a separate rating may be warranted under the diagnostic codes for a skin disability. See 38 C.F.R. § 4.118, DCs 7801-7805 (2013). At the April 2009 VA examination, the Veteran was diagnosed, in pertinent part, with extensive scar debridement laterally over the right knee. The examiner noted physical findings showed arthroscopic 1 centimeter scars all clinically healed with normal skin color and normal functional result. The October 2010 VA examiner also reported that physical findings revealed anterior post operative scars, normal and healed. Since the evidence of record shows the Veteran's scars are not 144 square inches or greater to warrant application of DC 7802, scars, other than head, face, or neck that are superficial and do not cause limitation of motion. The evidence does not show the scars are unstable or painful to warrant application of DC 7803, superficial, unstable scars or DC 7804, superficial, painful on examination scars. Additionally, the evidence of record does not indicate the Veteran's scars limit his motion to warrant application of DC 7801, scars, other than head, face, or neck, that are deep or that cause limited motion; or DC 7805, scars, other, which are rated on limitation of function of the affected part. Therefore, 38 C.F.R. § 4.118, DCs 7801-7805 do not assist the Veteran in obtaining a higher rating for any period. In this regard, it is important for the Veteran to understand that without taking into consideration his problems, the current evaluations could not be justified based on the evidence of record, particularly the objective medical findings of the examinations cited above. The Board has considered the Veteran's reported history of symptomatology regarding the service-connected right knee arthrofibrosis lateral plica, as discussed above. The Board acknowledges he is competent to report such symptoms because this requires only personal knowledge as it comes through ones senses; nonetheless, he is not competent to identify a specific level of the service-connected disability on appeal according to the appropriate diagnostic code. In this case, such competent evidence concerning the nature and extent of the service-connected disability on appeal has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints and increased symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). Neither the evidence of record nor the Veteran raises the issue of a total disability rating based on individual unemployability (TDIU) due to his service-connected right knee arthrofibrosis lateral plica. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In fact, the April 2009 VA examination report documents the Veteran is unemployed, possible job search and school in the fall, he still does chain saw and mechanic work, and is unemployed but not retired due to his job search. The October 2010 VA examiner further noted the Veteran is unemployed but not retired and was fired due to his posttraumatic stress disorder (PTSD). An extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321 (2013). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 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, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. In this case, the schedular rating criteria contemplate the symptoms and impairment caused by the right knee arthrofibrosis lateral plica. The schedular rating criteria specifically provide for ratings based on the Veteran's reported right knee symptomatology, as discussed above. See 38 C.F.R. § 4.71a, DC 5259. There is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, referral for extra-schedular consideration for the service-connected disability on appeal is not required. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA 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; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a January 2009 Notice Acknowledgment and Response letter as part of the BDD program. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the January 2009 letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes the Veteran's VA outpatient treatment records, statements from the Veteran, and April 2009 and October 2010 VA examination reports. The VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board notes that the VA examination reports are probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the Veteran's most recent VA examination was approximately three years ago; however, an additional VA examination is not warranted in this case because the evidence of record does not indicate that the Veteran's right knee arthrofibrosis lateral plica has become more severe since the October 2010 VA examination. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER An initial rating in excess of 10 percent for right knee arthrofibrosis lateral plica is denied. REMAND In a June 2009 rating decision, the RO granted service connection for left knee disability and assigned a 10 percent disability rating. The Veteran disagreed with the June 2009 rating decision in an April 2010 personal statement, thus filed a timely notice of disagreement (NOD). Thereafter, the RO increased the disability rating for the left knee to 20 percent in a March 2011 rating decision. The Court has held that, where the record contains a NOD as to an issue, but no statement of the case (SOC), the issue must be remanded to the originating agency to issue a SOC and to provide the claimant an opportunity to perfect the appeal. See Manlicon v. West, 12 Vet. App. 238 (1999). In this case, a SOC was not issued for this identified issue, thus the Board finds that a remand is required. Accordingly, the case is REMANDED for the following action: Issue a SOC to the Veteran and representative addressing the issue of entitlement to an initial rating in excess of 10 percent prior to April 12, 2010 and in excess of 20 percent thereafter for left knee disability. The Veteran and representative should be advised of the time limit in which to file a Substantive Appeal. Then, only if the appeal is timely perfected, should the issue be returned to the Board for further appellate consideration, if otherwise in order. The Veteran and representative have 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 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. 2013). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs