Citation Nr: 1338668 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 12-07 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased rating, in excess of 10 percent, for pes anserine bursitis of the left knee. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1995 to March 1999. This case comes to the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). Service connection is also in effect for left knee instability, evaluated as 10 percent disabling. This disability is not a part of the appeal. In his substantive appeal, the Veteran has raised the issue of whether clear and unmistakable error (CUE) was committed in a December 2005 2012 rating decision. This matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. From the date of claim until December 22, 2011, pes anserine bursitis of the left knee was primarily manifested by range of motion of the left knee no worse than from 10 degrees extension to 110 degrees flexion, with pain. 2. As of December 23, 2011, pes anserine bursitis of the left knee was primarily manifested by range of motion of the left knee from 0 degrees extension to 120 degrees flexion, with pain on flexion at 15 degrees. CONCLUSIONS OF LAW 1. The criteria for an increased rating, in excess of 10 percent, for pes anserine bursitis of the left knee were not between the date of claim and December 22, 2011. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.45, 4.71a, Code 5019 (2013). 2. The criteria for an increased rating of 30 percent for pes anserine bursitis of the left knee were met from December 23, 2011. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.45, 4.71a, Code 5019 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A September 2009 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The Veteran has had ample opportunity to respond or supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded VA medical examinations in October 2009 and December 2011. The Board finds that the opinions obtained are adequate. The opinions were provided by qualified medical professionals and were predicated on a full reading of all available records. The examiners also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although the Veteran has stated that the October 2009 examination was inadequate, he has not challenged the adequacy of the December 2011 examination. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2013). Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2013). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2013). The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, 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. More generally, 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F.3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Left Knee The Veteran contends that his service-connected left knee disorder is more disabling than currently evaluated. He has asserted that the ability to flex the knee to only 120 degrees is the equivalent of flexion limited to 30 degrees. Therefore he believes that a 20 percent rating is warranted. The Veteran submitted a claim for an increased rating for the bursitis of his left knee in September 2009. Service connection for pes anserine bursitis of the left knee was granted by the RO in an October 1999 rating decision. The 10 percent disability rating was awarded at that time under the provisions of Codes 5257-5019. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the function affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (2013). By rating decision dated in December 2005, a separate 10 percent rating was awarded under the provisions of Code 5257 for left knee instability. The Veteran has not appealed this rating and it is not before the Board. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Bursitis under Diagnostic Code 5019 is rated on the basis of limitation of motion as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is 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 there is limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. As noted, the Veteran has been awarded a separate 10 percent rating under Code 5257, which is not part of this appeal. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more is rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. An examination was conducted by VA in October 2009. At that time, the Veteran complained of weakness, giving way, lack of endurance, fatigability, tenderness, and pain. He indicated that he did not experience stiffness, swelling, heat, redness, locking, deformity, drainage, effusion, subluxation or dislocation. He reported flare-ups as often as three to four times per day that lasted for one to two hours. Pain level was reported to be six out of ten. The flare-ups were precipitated by physical activity and stress, but did occur spontaneously as well. During flare-ups, he was unable to run, jump, or do heavy lifting without pain or limitation of motion. He also reported difficulty with prolonged standing and walking. He was not receiving treatment for the disorder, but had received treatment in the past, including physical therapy and anti-inflammatory drugs that were ultimately ineffective. On examination, the Veteran walked with a normal gait. The left knee showed no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment or drainage. There was no subluxation, locking, pain, genu recurvatum, or crepitus. There was no ankylosis. Range of motion of the left knee was from 0 degrees extension to 130 degrees flexion, with pain at 0 degrees extension and 130 degrees flexion. Range of motion as the same after repetition, without additional degree of limitation. The Veteran did have pain after repetitive use, but joint function was not additionally limited by fatigue, weakness, lack of endurance or incoordination. Ligament testing was all within normal limits. Left knee X-ray study findings were normal. The pertinent diagnosis was pes anserine bursitis of the left knee. Private treatment records, dated in February 2010 showed that the Veteran walked without an antalgic gait. His left knee was tender on the medial joint line. There was no tenderness over the medial femoral condyle. The left knee was stable in extension. Range of motion of the left knee was from -3 degrees to 130 degrees. Lachman's and posterior drawer signs were negative. An MRI study showed mild patellar chondromalacia. VA outpatient treatment records show that the Veteran was seen for complaints involving the left knee on May 19, 2010. He stated that the knee pain had become progressively worse over the past year. He reported having had two steroid injections in the left knee, about 10 years apart. Examination showed normal muscle tone with no muscle atrophy. Range of motion was listed as being from 10 degrees to -110 degrees. There was pain along the medial joint space, bilaterally. There was no pain with palpation or manipulation, and minimal knee crepitation. McMurray's sign was negative; there was no joint effusion or ligamentous instability. The Veteran walked with an antalgic gait. The diagnosis was bilateral pes anserine bursitis. An examination was conducted by VA on December 23, 2011. At that time, the diagnosis was patella chondromalacia of both knees. Range of motion of the left knee was from 0 degrees extension to 120 degrees of flexion. Painful motion was noted at 15 degrees flexion, but no pain was noted on extension. The Veteran was able to perform repetitive use testing with range of motion remaining from 0 degrees extension to 120 degrees flexion. The Veteran did have functional loss after repetition in that he stated that he had less movement than normal, further described as an inability to flex his knees any farther to prevent painful motion. Muscle strength testing was normal at 5/5. There was no evidence of recurrent patellar subluxation or dislocation. There was no meniscal condition noted, no history of surgical procedures, and no use of assistive devices. It was reported that an MRI study performed in February 2010 had shown mild patella chondromalacia of the left knee. As noted, bursitis is primarily rated on the basis of limitation of motion. On examination in October 2009, the range of motion of the Veteran's left knee was from 0 degrees extension to 135 degrees flexion. This is only slightly decreased from normal ranges of 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. As such, it does not provide a basis for a rating in excess of the assigned 10 percent. Similarly, the private examination report dated in February 2010 shows ranges of motion from -3 degrees (hyperextension) to 130 degrees (flexion). Again, these ranges are close to normal and application of the rating criteria does not provide a basis for a higher evaluation. On examination by VA on May 19, 2010, range of motion was listed as being from 10 degrees to -110 degrees. The Board finds that while a 10 percent rating would be warranted for extension limited to only 10 degrees beginning on this date, the current 10 percent evaluation is for noncompensable limitation of motion of a major joint and once limitation of motion is to a compensable level, there is no longer a basis for a 10 percent rating for noncompensable limitation of motion of a major joint. Thus, the limitation of extension to 10 degrees does not provide a basis for an increased rating. The limitation of flexion, which is interpreted by the Board as being to 110 degrees, does not provide a basis for a separate rating for limitation of flexion, as the schedule requires limitation of flexion to be to 45 or less for a compensable evaluation. During VA examination on December 23, 2011, left knee range of motion was from 0 degrees extension to 120 flexion, with flexion painful at 15 degrees. With extension shown to 0 degrees, a separate compensable evaluation for limitation of extension is not warranted. Flexion that is limited to 15 degrees warrants a 30 percent rating, which is assigned as of the date of the VA examination, December 23, 2011. In sum, the Veteran's left knee bursitis is shown to warrant a 30 percent disability rating, but no higher, on the basis of limitation of flexion of the knee from December 23, 2011. Prior to December 23, 2011, a basis for a higher rating or ratings is not shown. For these reasons, the Board finds that a preponderance of the evidence supports the Veteran's claim for an increased rating for left knee disability from December 23, 2011, when a 30 percent rating is warranted for flexion limited to 15 degrees due to pain. With no greater limitation of motion than as discussed above, higher evaluations are not warranted. To this extent, the appeal is allowed. Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran's left knee limitations of extension and flexion are rated as degenerative arthritis and directly correspond to the schedular criteria for the 10 percent evaluation for noncompensable limitation of a major joint (prior to December 23, 2011) and flexion which is painful at 15 degrees (from December 23, 2011). The ratings also incorporate various orthopedic factors that limit motion or function of the knee. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. For this reason, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's left knee disability, and no referral for an extraschedular rating is required. Finally, the Veteran is employed so that a total rating based on individual unemployability (TDIU) is not before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating in excess of 10 percent for left knee pes anserine bursitis is denied prior to December 23, 2011. A rating of 30 percent for left knee pes anserine bursitis is granted from December 23, 2011. To this extent, the appeal is allowed, subject to the controlling regulations governing the payment of monetary benefits. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs