Citation Nr: 1340318 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-34 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating for chondromalacia, left patella with limited extension in excess of 10 percent prior to January 4, 2013, and in excess of 30 percent thereafter. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for chronic headaches. ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from December 1970 to August 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By this decision, the RO, in pertinent part, denied service connection for hearing loss, tinnitus, and recurrent headaches. The RO also established service connection for chondromalacia, left patella with limited extension and assigned an initial rating of 10 percent, effective January 6, 2009. The Veteran appealed the denial of service connection and the initial rating assigned for the left knee disability. By a June 2013 rating decision, a 30 percent rating was assigned for the chondromalacia, left patella with limited extension, effective from January 4, 2013. The Veteran subsequently indicated that the 30 percent rating satisfied his claim for a higher rating, but he disagreed with the effective date. In the June 2013 rating decision, a separate rating of 20 percent was assigned for the left knee on the basis of recurrent subluxation pursuant to Diagnostic Code 5257, effective from January 4, 2013. The Veteran has not expressed disagreement with the initial rating or effective date assigned for recurrent subluxation. Finally, the Board notes that the Veteran also initiated an appeal to the denial of service connection for hemochromatosis. However, the record does not reflect the Veteran perfected his appeal as to that claim by filing a timely Substantive Appeal after a Statement of the Case (SOC) was promulgated on that issue in June 2013. Therefore, the Board does not have jurisdiction to address that claim. Id. The issues of entitlement to service connection for bilateral hearing loss, tinnitus, and chronic headaches are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Since the grant of service connection, chondromalacia, left patella with limited extension has manifested with pain and extension limited to no less than 20 degrees and flexion limited to no less than 90 degrees, including on repetition; and without clinical evidence of ankylosis, or frequent episodes of locking, pain and effusion into the joint. 2. Prior to January 4, 2013, chondromalacia, left patella with limited extension manifested without clinical evidence of instability or recurrent subluxation. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for chondromalacia, left patella with limited extension prior to January 4, 2013, and in excess of 30 percent from January 4, 2013, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5014 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claim for a higher rating for service-connected chondromalacia, left patella with limited extension is an appeal from the initial rating assigned following the establishment of service connection. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that the duty to assist the Veteran has been satisfied in this case. The Veteran's service and post-service VA treatment records are on file, as are records from the Social Security Administration (SSA). Further, the Veteran was provided an opportunity to present oral evidence and argument in support of his claim, but indicated that no hearing was desired. The Veteran was also provided with VA examinations in July 2009 and in January 2013 to evaluate his left knee disability. The VA examinations were based on the Veteran's medical history and describe the knee disability in sufficient detail in the context of the rating criteria. For these reasons, the Board finds the examinations are adequate so that the Board's evaluation of the disability is a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). No inaccuracies or prejudice is demonstrated with respect to these examinations, nor has the Veteran indicated his left knee disorder has increased in severity since the most recent examination. For these reasons, the Board finds that these VA examinations are adequate for resolution of this case. Higher Rating Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). A veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). For the period prior to January 14, 2013, the Veteran's left knee disability was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5014 as analogous to osteomalacia. The criteria provides that disabilities rated under Diagnostic Code 5014 are to be rated based upon limitation of motion of the affected parts. Diagnostic Codes 5260 and 5261, discussed below, provide ratings for knee disabilities based upon limitation of motion. Diagnostic Code 5260 provides for limitation of flexion of the leg. Where flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a, DC 5260. Diagnostic Code 5261 provides for limitation of the extension of the leg. When there is limitation of extension of the leg to 5 degrees, a zero percent rating is assigned; when the limitation is to 10 degrees, a 10 percent rating is assignable; when the limitation is to 15 degrees, 20 percent is assigned; when extension is limited to 20 degrees, 30 percent is assigned; when extension is limited to 30 degrees, 40 percent is assigned; and when it is limited to 45 degrees, 50 percent is assigned. 38 C.F.R. § 4.71a, DC 5261. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis; and when raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1 (2012). At a VA examination in July 2009, the Veteran reported that his ability to walk was limited due to pain. He reported a history of medial meniscus tendon surgery in 2000 or 2001 with a subsequent reduction in pain. He indicated there had been no orthopedic follow-up since 2001. He denied symptoms of weakness, swelling, stiffness, giving way, fatigability, and lack of endurance. On physical examination, flexion was from 0 to 130 degrees with pain at the end range of motion. Extension was to 0 degrees. There was no ligamentous instability. There was no additional restriction in range of motion due to weakness, swelling, stiffness, giving way, fatigability, and lack of endurance following repetitive range of motion assessments. Functionally, the Veteran could walk 1/4 mile without ambulation aids. He had a steady, non-antalgic gait. He could not perform heel, toe, or tandem gait. He was independent in walking, transfers, recreational activities and activities of daily living. There was no medically enforced bedrest in the past 12 months and he was gainfully employed as a trucker. The diagnosis was chondromalacia left knee; medial meniscus surgery left knee; minimal degenerative joint disease medial compartment left knee. VA treatment records show a history of knee pain and arthroscopic surgery. At a VA examination in July 2013, the Veteran reported flare-ups occurred 5 to 6 times a year with symptoms of increased pain and stiffness, and the knee popping out of the socket. On physical examination, flexion was from 0 to 90 degrees with pain at the end range of motion. Extension was to 20 degrees with pain at the end range of motion. Repetitive motion was possible without any change in range of motion. Functional loss included of less movement than normal, pain on movement, and excess fatigability was noted. Tests for instability were normal, but a history of moderate subluxation was noted. The Veteran reported occasional use of a cane. A history of meniscectomy was noted but there were no current residual signs or symptoms noted by the examiner. The examiner's diagnosis was chondromalacia left knee with meniscectomy. The examiner indicated that the meniscectomy was performed to correct the continuing and progressing symptoms following the [in-service] knee injury in 1971. The examiner further noted that on flare-up range of motion would not be reduced, but activity would be reduced. The examiner also indicated that the knee would affect the Veteran's ability to work in that his ability to lift, stand and walk for prolonged periods was limited. The Veteran is currently in receipt of a 10 percent rating in contemplation of his slight functional loss. A rating of 10 percent is warranted for painful movement of an arthritic joint even if no compensable loss of motion is shown; see VAOPGCPREC 09-98 (August 14, 1998), citing Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991); see also Burton v. Shinseki, 25 Vet. App. 1 (2011). This rating adequately portrays his functional loss due to flare-ups of pain, weakened movement, and excess fatigability in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59. Despite the Veteran's complaints of pain, the record does not reflect that prior to January 4, 2013; his service-connected left knee disorder was manifested by flexion limited to 30 degrees or less or, extension limited to 15 degrees or more, even considering functional impairment. The July 2009 VA examination showed flexion to 130 degrees and extension to zero degrees. There was no additional restriction of range of motion due to pain, fatigue, weakness, or lack of endurance during flare-ups and following three repetitive goniometer range of motion assessments. Thus, the evidence of record for the period prior to January 4, 2013, fails to indicate limitation of motion to the extent necessary for even a compensable rating under DC 5260 or DC 5261. In view of the foregoing, the record does not reflect the Veteran met or nearly approximated the criteria for a rating in excess of 10 percent for his service-connected left knee disorder based upon limitation of motion prior to January 4, 2013. See 38 C.F.R. § 4.71a, Diagnostic codes 5260 and 5261; see also VAOPGCPREC 9-2004. Although the Veteran has specifically indicated that he is satisfied with the 30 percent rating for limited extension that was assigned for the period after January 14, 2013, the Board has still evaluated the record to determine if a higher rating is warranted after this period based on limitation of motion. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (The Board must also include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record). The January 2013 VA examination showed flexion to 90 degrees and extension to 20 degrees. There was no additional restriction of range of motion due to pain, fatigue, weakness, or lack of endurance during flare-ups and following three repetitive goniometer range of motion assessments. Thus, the evidence of record from January 4, 2013, fails to indicate limitation of motion to the extent necessary for a rating in excess of 10 percent under DC 5260, or for a rating in excess of 30 percent under DC 5261. The Board has also evaluated the record to determine if higher ratings are warranted for the left knee disability since the effective date of service connection under any other applicable diagnostic codes. In doing so, the Board finds that there are no other diagnostic codes which would provide higher or separate ratings for the Veteran's left knee disability at any time since the effective date of service connection. There is no evidence that the left knee disability is productive of ankylosis or complete immobility of the knee joint; malunion or nonunion of the tibia and fibula, therefore Diagnostic Codes 5256 and 5262 are not applicable. The Veteran reports frequent episodes of pain involving the left knee joint. A 20 percent rating is warranted under DC 5258 when there is semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. However, there is no evidence of frequent episodes of locking and effusion into the joint, in addition to the frequent pain that has been noted. See, the July 2009 and January 2013 VA examination reports. Thus, a higher separate rating under DC 5258 is not warranted at any time since the grant of service connection. Diagnostic Code 5259 is also inappropriate as the record does not reflect a history of symptomatic removal of semilunar cartilage at any time since the grant of service connection. See, the January 2013 VA examination report. Finally, as noted in the Introduction, the June 2013 rating decision assigned a separate rating of 20 percent for the left knee on the basis of recurrent subluxation pursuant to DC 5257, effective from January 4, 2013. Under Diagnostic Code 5257, slight impairment of either knee, including recurrent subluxation or lateral instability warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment, while a 30 percent evaluation requires severe impairment. 38 C.F.R. § 4.71a. In a precedent opinion dated July 1, 1997, the General Counsel for VA held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97. The Board has already noted that the Veteran did not express disagreement with either the initial rating based upon subluxation or the effective date thereof. Nevertheless, the Board does note that the July 2009 VA examiner found that there was no ligamentous instability. And there was no other evidence of instability in the record prior to January 4, 2013, such that a separate, compensable rating would be warranted at any time prior to January 4, 2013. There also is no evidence of severe recurrent subluxation or severe lateral instability at any time after January 4, 2013, such that a rating in excess of 20 percent would be warranted for the period after January 4, 2013. See, 38 C.F.R. § 4.71a, DC 5257. For these reasons, the Board finds that the Veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent for the service-connected chondromalacia, left patella with limited extension prior to January 14, 2013. In making this determination, the Board took into account the Veteran's complaints of pain, as well as potential "staged" rating(s) pursuant to Fenderson, supra. However, a thorough review of the record does not indicate any distinctive period(s) where the Veteran met or nearly approximated the schedular criteria for a higher rating prior to January 14, 2013, or after, even when taking into account his complaints of pain. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the rating criteria contemplate the Veteran's left knee disability. The record, including the Veteran's own contentions, reflects the left knee during this period was productive of pain and functional impairment. Such manifestations contemplated in the rating criteria. Moreover, pursuant to the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59, the Board was required to consider any impairment due to the complaints of pain as part of the schedular evaluation. Therefore, to find that such impairment warrants an extraschedular evaluation would be in violation of the prohibition against pyramiding in 38 C.F.R. § 4.14. Consequently, the Board concludes that the rating criteria are therefore adequate to evaluate the Veteran's left disability and referral for consideration of extraschedular rating is not warranted. Lastly, the Board notes that notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the Veteran has not contended, nor does the record reflect, he is unemployable due to his service-connected left knee disorder. Therefore, entitlement to a TDIU is not warranted. ORDER A higher initial rating for chondromalacia, left patella with limited extension in excess of 10 percent prior to January 4, 2013, and in excess of 30 percent thereafter, is denied. REMAND The Veteran seeks service connection for chronic headaches, tinnitus, and hearing loss. The Veteran has identified several private medical facilities and private clinicians from which he received treatment for his claimed disabilities. These facilities and clinicians include Dr. Glaspey in Shiloh, New Jersey (NJ); the headache clinic at the Crozier Medical Center in Chester, Pennsylvania (PA); Dr. Ballas in Bridgeton, NJ; the University of Pennsylvania; and the Jefferson Hospital in Philadelphia, PA. Upon review of the file, the Board finds no indication that the RO made any attempt to obtain the private treatment records from the facilities and clinicians identified by the Veteran. Although the Veteran indicated that Dr. Glaspey has since retired, and that none of these facilities "seem to have" his records, VA has an obligation to assist the Veteran in obtaining evidence relevant to his claim. On remand, the RO must request treatment records from these facilities and clinicians. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c)(2)(2013); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). In addition, the Board finds that the March 2013 VA audiology examination is inadequate. At the March 2013 examination, a VA audiologist opined that the Veteran's bilateral hearing loss was not incurred in service because the separation examination was normal with no change from the enlistment examination. The audiologist further opined that the Veteran's tinnitus was not incurred in service because of the lack in change in hearing and lack of complaint. The Board, however, notes that the absence of in-service evidence of documented hearing loss in service is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As the claims are being remanded for other development, an addendum opinion should be obtained. The Court has held that once VA has undertaken to provide a medical examination or opinion, even when not obligated to do so by statute, it "must provide an adequate one, or at a minimum, notify the claimant why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). The Veteran also appears to assert that his claimed headache disability is related to his tinnitus. As the claim for tinnitus is being remanded for records and an addendum opinion, an opinion should be obtained with respect to whether a headache disorder is present, and caused or aggravated by the tinnitus. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide sufficient information, and if necessary, authorization, to obtain any additional private and VA treatment records pertinent to the claims on appeal. Then, obtain non-duplicative copies of all records identified by the Veteran, to include all relevant VA treatment records from June 2013; and private records including those from Dr. Glaspey in Shiloh, NJ; the headache clinic at the Crozier Medical Center in Chester, PA; Dr. Ballas in Bridgeton, NJ; the University of Pennsylvania; and the Jefferson Hospital in Philadelphia, PA, and associate them with the claim file, either physically or electronically through Virtual VA. Any negative responses must be in writing and associated with the claim file. 2. Schedule the Veteran for appropriate VA examinations to determine the nature, extent, onset and etiology of his hearing loss, tinnitus and any chronic headache disorder found to be present. All indicated studies should be performed, and all findings should be reported in detail. The claims files should be made available to and reviewed by the examiner(s). The examiner is also to provide an opinion as to whether it is at least as likely as not that hearing loss, tinnitus, or a chronic headache disorder had onset in service or are otherwise related to service. With respect to the claimed chronic headache disorder, the examiner should indicate whether it is at least as likely as not caused or aggravated by the tinnitus. The examiner is advised that the Veteran is competent to report his symptoms, and such statements by the Veteran must be considered in formulating any opinions. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner determines that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then, readjudicate the issues on appeal. If any benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters 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. 2013). ______________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs