Citation Nr: 1339618 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 08-10 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to increases in the staged (0 percent prior to February 15, 2012, and 10 percent from that date) ratings assigned for a right knee disability. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who retired from active duty in November 1986 after 20 years of service beginning in February 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office that continued a 0 percent rating for postoperative Osgood Schlatter's disease, under Diagnostic Code (Code) 5257. In February 2011, a Travel Board hearing was held before the undersigned; a transcript is associated with the record. In January 2012 the case was remanded for further development. An interim (November 2012) rating decision increased the rating to 10 percent ( under Codes 5010-5261), effective February 15, 2012, resulting in staged ratings. The issue is characterized to reflect that more extensive pathology is encompassed by the service connected entity, and that "staged" ratings are assigned, with both stages on appeal. In July 2013 the Board again remanded the matter for further development. [This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of an electronic record.] FINDINGS OF FACT Throughout, to include prior to February 15, 2012, the Veteran's service-connected right knee disability has been manifested by arthritis with painful (but less than compensably limited) motion; subluxation or instability is not shown. CONCLUSION OF LAW A 10 percent rating for the Veteran's right knee disability is warranted throughout, to include prior to February 15, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5003, 5010, 5257, 5260, 5261 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase (as here) 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 the worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009). The Veteran received such notice in May 2006, May 2008, and June 2009 letters. It is not alleged that notice was less than adequate. The Veteran's pertinent treatment records have been secured. He was afforded a hearing before the undersigned. At the hearing, he was advised of what is needed to substantiate his claim; his testimony reflects that he is aware of what is necessary. The RO arranged for VA examinations in May 2006, May 2008, February 2012, and August 2013. A review of the examination reports found them (cumulatively) adequate for rating purposes. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Disability ratings are determined by the application of a schedular rating, which is based on an average impairment of earnings capacity. 38 U.S.C.A. § 1155; 38 C.F.R.. Part 4. Separate diagnostic codes identify the various disabilities. 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. 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. In order to evaluate the level of disability, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences. However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. Lay evidence is not competent evidence concerning complex medical questions requiring specialized training or expertise. Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA (VA's electronic data storage system), 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) . Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service-connected right knee disability has been rated by the RO under the provisions of multiple Codes in 38 C.F.R. § 4.71a. Traumatic arthritis (established by X-ray findings) is rated as degenerative arthritis, and is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When the limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each major joint affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Codes 5010-5003. 38 C.F.R. § 4.71a includes multiple diagnostic codes that evaluate impairment resulting from knee disorders, including Code 5256 (for ankylosis), Code 5257 (other impairment, including recurrent subluxation or lateral instability), Code 5258 (dislocated semilunar cartilage), Code 5259 (symptomatic removal of semilunar cartilage), Code 5260 (limitation of flexion), Code 5261 (limitation of extension), Code 5262 (impairment of the tibia and fibula), and Code 5263 (genu recurvatum). Code 5257 provides for a 10 percent rating for slight recurrent subluxation or lateral instability of the knee, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, to 45 degrees a 10 percent rating, to 30 degrees a 20 percent rating, and to 15 degrees a 30 percent rating. 38 C.F.R. § 4.71a, Code 5260. Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, to 20 degrees a 30 percent rating, to 30 degrees a 40 percent rating, and to 45 degrees a 50 percent rating. 38 C.F.R. § 4.71a, Code 5261. [Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. 38 C.F.R. § 4.71, Plate II.] Under Code 5262, a 10 percent rating is warranted when there is malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating when there is malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent rating for malunion of the tibia and fibula with marked knee or ankle disability; and a [maximum] rating of 40 percent for nonunion of the tibia and fibula with loose motion, requiring brace. 38 C.F.R. § 4.71a. Under Code 5263, a 10 percent rating is warranted for genu recurvatum. 38 C.F.R. § 4.71a. When evaluating musculoskeletal system disabilities, 38 C.F.R. § 4.40 provides 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). 38 C.F.R. § 4.45 provides that consideration be given to weakened movement, excess fatigability and incoordination. The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment. Separate ratings may be assigned for knee disability under Codes 5257 and 5003 or 5260-61 when there is X-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See VAOPGCPREC 23- 97, VAOPGCREC 9-98. A VA General Counsel precedent opinion holds that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Code 5260 and a compensable limitation of extension under Code 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). On May 2006 VA examination, the Veteran related he had had right knee surgery for Osgood-Schlatter disease. On examination of the right knee drawer and McMurray signs were negative. Flexion was to 120 degrees and extension was to 0 degrees. The diagnosis was status post right knee surgery for Osgood-Schlatter. The examiner noted that the Veteran was independent in activities of daily living and worked as a bartender and a commercial driver without significant loss of time at work. There was no additional loss of range of motion due to pain, fatigue, weakness or incoordination. On May 2008 VA examination, the Veteran reported right knee joint pain which occurred three times a day, with a duration of approximately 10 minutes. He had a mild antalgic gait. He denied using a cane, crutch, walker, wheelchair or right knee brace. He had difficulty with prolonged standing and walking for more than 15 minutes, walking up and down steps, climbing and squatting in his job as a realtor and in performing activities of daily living. On examination, right knee flexion was to 100 degrees, and extension was to 0 degrees. There was evidence of mild or minimal pain on motion from 90 degrees to 100 degrees. On repetitive use times three the range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance. The Veteran denied flare-ups of right knee disability. There was no instability of the right knee. Drawer's and McMurray's signs were negative. There was no swelling or crepitus. There was mild tenderness along the anterior aspect of the right knee. There were no recent diagnostic studies for review. There was a faint anterior vertical scar noted along the right knee and anterior aspect which measured approximately 3 cm in length and 1/4 cm in width. The scar was asymptomatic. The diagnosis was residuals of right knee surgery, with mildly active strain, and range of motion abnormality. The examiner noted that the diagnosis was justified in regards to functional impairment. Regarding the Veteran's occupation in real estate, and his activities of daily living, he had difficulty with prolonged standing and walking for more than 15 minutes, walking up and down steps, climbing and squatting due to right knee pain. At the February 2011 Travel Board hearing, the Veteran testified that he had surgery for Osgood-Schlatter injury and underwent 3 to 4 years of physical therapy. He reported pain, weakness, fatigability, stiffness, and instability of the right knee. On February 2012 VA examination, the Veteran presented with a moderate antalgic gait. He reported that in 1982 he had arthroscopic surgery (on the right) to remove a tubercle, which he claimed did not improvement the disability. He denied use of a cane, crutch, walker, brace, or wheelchair. He denied flare-ups of the right knee. On examination, flexion was to 90 degrees and extension was to 0 degrees. There was evidence of mild to moderate pain with facial expression of wincing on flexion between 80 - 90 degrees. There was no additional limitation of range of motion of the right knee following repetitive use testing that resulted in functional impairment as it related to his activities of daily living and his occupation as a realtor. His excursion, strength, speed, coordination, and endurance were all normal for the right knee. He had some difficulty standing and walking for 20 minutes, walking up and down steps, climbing, and squatting due to right knee pain. Muscle strength testing was 5/5. Joint stability (Lachman, posterior drawer and medial and lateral instability) tests were all negative. There was no evidence of patellar subluxation or dislocation. There were no shin splints, or stress fractures. There was no tibia or fibula impairment, or history of meniscal condition or surgery. The diagnosis was right knee strain post residuals, right knee surgeries with range of motion abnormality. The examiner noted there were no recent diagnostic studies for his review. However, he opined that arthritis was at least as likely present, but not traumatic in nature. The opinion was based on history and physical examination of the Veteran, review of the claims file, and the fact the Veteran was currently service-connected for a right knee disability. On August 2013 VA examination, the Veteran reported continued intermittent pain of the right knee on prolong walking and standing. He had intermittent pain walking a block, getting up out of a chair and with prolonged standing. On examination, right knee flexion (including with pain) was to 130 degrees. Right knee extension was to 0 degrees with no evidence of painful motion. On repetitive testing right knee flexion was to 130 degrees and extension was to 0 degrees. There was no additional limitation in range of motion of the right knee or functional loss and/or functional impairment. There was no tenderness or pain to palpation. Muscle strength was 5/5. Lachman's test (anterior instability), Drawer's test (posterior instability), and medial-lateral instability were normal. There was no patellar subluxation/dislocation. There was x-ray evidence of degenerative or traumatic arthritis of the right knee. The diagnosis was mild right knee degenerative arthritis. The examiner opined that the Veteran's mild degenerative disease was not part of maturation of Osgood-Schlatter's disease and not caused or aggravated by that disease. Prior to February 15, 2012 Prior to February 15, 2012, the Veteran's right knee disability had been rated 0 percent under Code 5257 (for right recurrent subluxation or lateral instability). A close review of the record found that during this period there was evidence of right knee arthritis. August 1991 postservice x-rays of the right knee show findings suggestive of early arthritic change of the medial aspect of the knee joint. Diagnoses of degenerative joint disease (DJD) of the right knee are also shown in service treatment records (STRs) in 1985 and 1986. In November 1985 the Veteran was placed on profile, in part based on mild DJD of the right knee. His limitations were no running, jumping, or marching (more than 1/4 mile). A December 1985 (i.e., during service) clinic report shows an assessment of right knee mild DJD of the medial compartment. A May 1986 in-service physical therapy report diagnosed post excision of non-united tubercle and mild DJD of the right knee "as per Dr. Heyne[.]" While the STRs do not include reports of right knee X-rays showing arthritis, based on noted diagnoses in service it may reasonably be conceded that right knee arthritis has been present since service (and is encompassed in the service-connected right knee disability). On May 2006 VA examination right knee flexion was to 120 degrees, extension was 0 degrees, and motion was limited by pain. On May 2008 VA examination the Veteran reported right knee pain; he had a mild antalgic gait. Flexion was to 100 degrees and extension was 0 degrees. He had mild or minimal right knee pain with flexion 90 to 100 degrees. Hence, throughout the evaluation period prior to February 15, 2012 the Veteran's right knee disability warrants a 10 percent rating under Codes 5010-5003 (for arthritis with painful, but less than compensably limited motion). As 10 percent is the maximum rating for one joint under Codes 5010-5003, a rating in excess of 10 percent on this basis is not warranted. From February 15, 2012 From February 15, 2012 no examination report or treatment record shows flexion or extension of the right knee limited to a degree warranting a 10 percent rating under Codes 5260, 5261. The analysis turns to whether a separate compensable rating is warranted for right knee instability or subluxation. No instability was noted on May 2006, May 2008, February 2012, or August 2013 VA examinations. On May 2006 VA examination, Drawer's test/sign was negative. On May 2008 VA examination there was no instability of the right knee noted, and Drawer's sign was negative. On February 2012 VA examination joint stability tests were all negative; and there was no evidence of patellar subluxation or dislocation. On August 2013 VA examination, testing for anterior, posterior, and medial-lateral instability was normal; and there was no evidence of recurrent patellar subluxation/dislocation. While the Veteran has reported he had right knee instability, examinations have not found objective evidence of such symptom. A subjective perception of instability does not equate to a functional equivalent of such. Consequently, a separate rating of 10 percent for subluxation or instability is not warranted. The Board has considered whether any other codes apply that would afford the Veteran a rating in excess of 10 percent (for periods prior to and from February 15, 2012). As pathology required for ratings under Codes 5256 (ankylosis), 5258 (dislocated semilunar cartilage), and 5262 (impairment of the tibia and fibula) is not shown, ratings under those Codes are not for consideration. The Board also has considered whether this claim warrants referral for consideration of an extraschedular rating. 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, it must be determined whether the disability picture is such that schedular criteria are inadequate, i.e., whether there are manifestations of impairment that are not encompassed by the schedular criteria. 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 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. Here, comparing the manifestations of the Veteran's right knee disability and associated impairment shown, to the rating schedule, the Board finds that symptoms and degree of disability shown throughout are wholly encompassed by the schedular criteria, and consequently those criteria are not inadequate. Therefore, referral for consideration of an extraschedular rating is not necessary. Finally, as the record shows that the Veteran is currently employed as a realtor (see February 2012 VA examination report), the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An increased (to 10 percent) rating is granted for the Veteran's service-connected right knee disability for the prior to February 15, 2012, subject to the regulations governing the payment of monetary awards; a rating in excess of 10 percent for the disability is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs