Citation Nr: 1342568 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 10-02 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating in excess of 10 percent for patellofemoral degenerative changes of the left knee. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1996 to January 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in pertinent part, awarded service connection for left knee patellofemoral degenerative changes and assigned an initial 10 percent evaluation effective June 19, 2008. Jurisdiction over the claims file is currently held by the RO in Roanoke, Virginia. In January 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Board's Central Office in Washington, D.C. A transcript of the hearing is associated with the Veteran's virtual claims file. In his May 2009 notice of disagreement, the Veteran expressed disagreement with the initial rating for his left knee disability and the decision denying service connection for hearing loss. However, in his VA Form 9, the Veteran only appealed the initial rating for his left knee condition. Therefore, the issue of service connection for hearing loss is not before the Board. This appeal was processed using the Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. During the period on appeal, the Veteran's left knee condition has been manifested by extension limited by no more than 10 degrees, including following repetitive motion, and pain. 2. During the period on appeal, the Veteran's left knee condition has been manifested by flexion limited to no less than 60 degrees, including following repetitive motion, and pain. 3. The Veteran underwent a meniscectomy that resulted in the removal of semilunar cartilage in the left knee and he is symptomatic. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for patellofemoral degenerative changes of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5261 (2013). 2. The criteria for a separate rating of 10 percent, but no more, for removal of semilunar cartilage of the left knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5259 (2013). 3. The criteria for a separate rating of 0 percent, but no more, for limitation of flexion of the left knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. 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 submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for patellofemoral degenerative changes of the left knee. 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). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. The duty to assist has been met. The Veteran's service treatment records, VA medical records, and private medical records are in the file. The Veteran has referenced more recent private medical records. The RO by letter dated in April 2013 and the VA examiner in September 2013 requested any outstanding records but the Veteran has failed to provide those records or indicate the location of such records. Therefore, the Board concludes that VA has adequately assisted the Veteran in seeking evidence. The RO provided the Veteran VA examinations in December 2008 and September 2013. These examinations are adequate because they are based on thorough examinations, a description of the Veteran's pertinent medical history, a review of the medical records and appropriate diagnostic tests. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Hence, no further notice or assistance to the appellant is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Rating Criteria Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Veteran's appeal originates from a rating decision that granted service connection and assigned the initial rating. Staged ratings are appropriate in any increased-rating or initial rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119 (1999). In the February 2009 rating action on appeal, the RO granted service connection and assigned a 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5261-5010, effective June 19, 2008. This hyphenated diagnostic code indicates that degenerative arthritis is the service-connected disorder, and that limitation of knee extension, under DC 5261, is a residual condition. The Veteran contends that he is entitled to a higher rating. The rating criteria provided for limitation of motion of the knee and leg are found at 38 C.F.R. § 4.71a, DCs 5260 and 5261. DC 5260 provides ratings for limitation of flexion. Flexion of either leg limited to 60 degrees is noncompensable, flexion limited to 45 degrees merits a 10 percent rating, limitation of flexion to 30 degrees warrants a 20 percent evaluation, and a 30 percent evaluation requires that flexion be limited to 15 degrees. DC 5261 provides ratings of 0 percent for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and 50 percent for extension limited to 45 degrees. For rating purposes, normal range of motion of the knee is from zero to 140 degrees. See 38 C.F.R. § 4.71a, Plate II (2011). Separate disability ratings may be assigned for limitation of knee flexion and of knee extension without violation of the rule against pyramiding (at 38 C.F.R. § 4.14). VAOPGCPREC 9-04 (September 17, 2004), 69 Fed. Reg. 59,990 (2004). Also potentially applicable are DC 5258, which provides for assignment of a 20 percent rating for dislocation of the semilunar cartilage, with frequent episodes of "locking," pain and effusion into the joint and DC 5259, which provides for the assignment of a single 10 percent rating for removal of the semilunar cartilage, symptomatic. The Board has also considered the other diagnostic criteria related to the knees to determine whether an increased rating, or additional separate compensable rating, is warranted for the left knee under these provisions. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These diagnostic codes, however, are simply not applicable to the Veteran's service-connected left knee disability as there is no evidence of ankylosis (DC 5256); instability (DC 5257); any impairment of the tibia and fibula (DC 5262); or genu recurvatum (DC 5263). Consideration has also been given to whether an increased rating is warranted for service-connected left knee strain on the basis of functional impairment and pain. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). III. Analysis Service treatment records began documenting treatment for left knee pain in June 1998. After repeated visits and an MRI, the Veteran had a left knee arthroscopy in November 1999. Service treatment records also document the Veteran's convalescence and follow-up visits. After service, the Veteran was seen at the Washington Hospital in Virginia in July 2006. At that time he reported that he twisted his knee getting out of the shower. An X-ray was performed and showed no acute finding in the left knee. He was given pain medication and told to follow-up with an orthopedist. The Veteran was first seen by a private orthopedist, Dr. S, in July 2008. Dr. S reported that the left knee showed "mild quad atrophy, trace synovitis, pain with palpation of the medial joint line and some discomfort with terminal hypertension." Dr. S. expressed concern "regarding a chronic meniscal tear within the left knee, essentially a failed meniscal repair." An X-ray was done that was reported to be "unremarkable." The Veteran was re-evaluated by Dr. S. in September 2008. The Veteran's knee showed "minimal flexion contracture, mild synovitis, tenderness to palpation of the medial joint line and intrapatellar tendon." An MRI was performed that showed patellofemoral degenerative changes and a loose body posteriorily. Dr. S. suggested left knee arthroscopy. In October 2008, the Veteran underwent a left knee arthroscopy, chondroplasty/debridement of the distal femoral troclea and microfracture arthroplasty of the lateral femoral condoyle. The Veteran filed his claim for service connection and underwent a VA-contracted examination in December 2008. The Veteran reported having arthroscopy in 1999 and October 2008. He reported experiencing weakness, swelling, and lack of endurance. He also reported pain occurring 1 time per day and lasting for 4 hours. He described the pain as aching, sharp, and cramping that was 2 on a scale of 10. He reported not having stiffness, heat, redness, giving way, locking, fatigability and dislocation. Upon examination, the Veteran's posture and gait were found to be within normal limits. Examination also showed no signs of abnormal weight bearing or breakdown, callosities or any unusual shoe wear pattern. The Veteran explained that he does not require any assistive device for ambulation. The examiner reported that the left knee showed no signs of edema, effusion, weakness, redness, and heat. The examiner also noted that there was no subluxation, genu recurvatum, or locking pain. The left knee did show crepitus. The examiner performed a range of motion test. Flexion was normal at 140 degrees. Extension was noted to be limited by pain at 10 degrees. The examiner noted that the joint function was additionally limited by pain and lack of endurance, but not by fatigue, weakness or incoordination. The X-ray findings done at the examination were reported to show the knee to be within normal limits. The examiner diagnosed the left knee with status post left knee arthroscopic surgery. The examiner concluded that the effect of the Veteran's left knee condition on his daily activity was mild. In the rating action on appeal, the RO granted service connection and awarded a 10 percent evaluation, under DC 5261, based on the limitation of extension. The Veteran submitted a statement in July 2009. He wrote that the rating decision had indicated that he would have received a higher award if there had been complaints of locking and pain. He reported that he asserted in his original claim that he experienced several episodes of his knee locking and being unable to bend his knee. He also reported that he had explained that he had instances of his knee giving out and causing him to lose his balance. The Board notes that the rating decision actually informed the Veteran that a "higher evaluation of 20 percent is not warranted unless you have dislocation of the semilunar cartilage with frequent episodes of 'locking,' pain, and effusion into the joint..." The Veteran also submitted Dr. S.'s operative report. The Board notes that Dr. S.'s report establishes the knee disability; however, it does not offer any information contrary to what the VA examination noted and Dr. S.'s report does not offer any evidence of the Veteran's current condition in terms of range of motion. The Veteran also submitted an article on osteochondritis dissecans published by the Mayo Clinic. The Veteran highlighted the symptoms he suffers from. The Board notes that this article is general and does not relate specifically to the Veteran's case. Also, all of the symptoms highlighted by the Veteran were symptoms the Veteran described to the VA examiner in September 2013 discussed below. The Veteran also highlighted a section that provides that: "Although the diagnosis can often be made with X-rays alone, X-rays cannot show breaks or cracks in the cartilage, nor the stability of the joint. Other imaging techniques may be used to analyze the cartilage and provide other information to help make the diagnosis." The Veteran's handwritten note is: "My diagnosis from the VA doctor on 31 December 2008 was made by only X-ray. I had just had arthroscopy two months prior." In another letter dated in January 2010, the Veteran provided a synopsis of his history already detailed above. He also reiterated that he continues to suffer from knee pain and that his knee locks up, that it has given out and that he has fallen in the shower because of his knee. He also said that after his 2008 surgery, Dr.S. said he did not know how the Veteran lived with the pain for as long as he had. He claimed that Dr. S. told him he would need a partial knee replacement. The post-operative diagnosis from Dr. S. was "osteochondritis dissecans lateral femoral condyle; chondromalacia distal femoral trochlea; and possible loose body." The Board notes that in the operative report there is no discussion of the Veteran requiring a future partial knee replacement. At the January 2013 Board hearing, the Veteran reported that his knee was worse. He also reported that he had not seen a private doctor for his knee in two years. The Board also notes that the Veteran indicated that he works as a project manager for a Marine Corps program. After the hearing, the Board remanded for another VA examination. The Veteran underwent a VA examination in September 2013. The examiner reviewed the Veteran's claims file. The examiner diagnosed patellofemoral syndrome, status post arthroscopy surgery with residual pain and decreased range of motion. The examiner offered a second diagnosis for osteochondritis dissecans from arthroscopy surgery with residual pain and decreased range of motion. Both were noted to have been originally diagnosed in 1999. The Veteran claimed to have received 4 surgeries on his knee. The examiner noted that only two surgeries are documented in the claims file. The Board further notes that there are no other indications in the claims file that there were two additional surgeries. The Veteran reported that his pain began in 1997. He did not recall any particular injury. He reported that his knee would "swell, be painful, lock and feel weak." He described the pain as an "achy pain" and stated that it feels like his "knee has a headache." The pain becomes worsened by the angle he rests his knee and when he is laying flat on the bed. He also reported that the pain is worsened with prolonged walking, prolonged sitting/driving, going over uneven terrain, if the knee is kept in the same position for too long, and with the use of stairs. The Veteran also reported that he feels constant grinding and frequent locking sensations in the knee. He reported that his knee "often gives way" and feels "unstable." He claimed that he has fallen on several occasions going up and down the stairs and has fallen out of the shower, most recently 2-3 months before the examination. The Veteran reported flare-ups that impact the function of the knee. He described the flare-ups as making his knee feel hot and that it gets red and swells. The Veteran claimed that his knee condition limits his ability to enjoy life and is unable to do cardiovascular exercise. The Veteran claimed that he was recently seen by Dr. S who recommended "injections" into the knee. The Veteran stated he is awaiting insurance approval for those injections. The Veteran also reported that Dr. S told him that the next step would be "partial knee replacement" but that he is too young at this time. The examiner reported being unable to obtain those recent records from Dr. S. The Veteran was instructed to secure those records and send them to the RO. There is no indication that the Veteran followed through with that request. The Board notes that the Veteran did not submit any new records from Dr. S. despite receiving notice in April 2013 to provide additional evidence. Upon examination, range of motion for flexion was tested. Left knee flexion ended at 90 degrees and painful motion began at 60 degrees. There was no limitation of extension and there was no hyperextension. The Veteran was able to perform repetitive-use testing with 3 repetitions. Post-test range of motion for left knee flexion ended at 85 degrees. The examiner reported that the Veteran has less movement than normal, weakened movement, pain on movement, and incoordination in the left knee. Muscle strength was also tested. Flexion was measured as 4 out of 5, which is active movement against some resistance. Flexion was measured as 3 out of 5, which is active movement against gravity. Instability tests resulted in normal findings. The examiner reported that the Veteran has scars, but they are not painful and/or unstable, and the total area of all related scars is not greater than 39 square cm. The examiner reported that the Veteran had a meniscal condition and has frequent episodes of joint "locking" and pain in the left knee. The examiner noted that the Veteran had a meniscectomy of the left knee. The examiner noted that the Veteran ambulates with mild antalgic gait. He also experiences difficulty rising from a seated position. He uses chair handles for stability. The examiner also reported tenderness to palpation over the entire knee with increased pain over the joint lines bilaterally, tenderness to palpation over popliteal fossa, and mild effusion. The examiner reported that imaging studies how degenerative or traumatic arthritis in the left knee; there was no X-ray evidence of patellar subluxation. The examiner reported that the Veteran's left knee condition impacts his ability to work because the Veteran has difficulty with prolonged standing and prolonged sitting. In deciding the claim, the Board has considered the Veteran's statements and reports of symptoms. His statements describing his symptoms are considered to be competent evidence. King v. Shinseki, 700 F .3d 1339, 1344 (Fed.Cir.2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331,1335 (Fed.Cir.2006)). These statements, however, must be viewed in conjunction with the medical evidence as required by the rating criteria. Based on a review of the evidence, the Board finds that a rating in excess of 10 percent is not warranted under DC 5261; extension has not been shown to be limited to more than 10 degrees, even with consideration of DeLuca. A separate noncompensable rating is warranted under DC 5260 because left knee flexion is limited to 60 degrees. See September 2013 VA examination. The Board also finds that a separate 10 percent rating is warranted under DC 5259, for the removal of semilunar cartilage. The September 2013 VA examiner reported that the Veteran had a meniscectomy of the left knee and noted his complaints of episodes of locking and pain. Finally, the Veteran does have scars from his multiple knee surgeries, but there is no basis for a separate rating scars, as they were not painful, unstable, or greater than 39 square cm. See 38 C.F.R. § 4.118 (prior to and after August 30, 2002, October 23, 2008, and January 20, 2012). IV. Other Considerations The evidence in this case does not show that the Veteran has manifestations of a left knee disability that are not contemplated by the rating criteria. His disability is manifested by pain and decreased motion. The rating criteria contemplate these symptoms. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). There is no indication of unemployability. In fact, the Veteran reported working for the Marine Corps as a project manager. A claim for TDIU has not been raised in the record. ORDER An initial rating in excess of 10 percent for patellofemoral degenerative changes of the left knee is denied. A separate 10 percent rating for removal of semilunar cartilage is granted, subject to controlling regulations governing the payment of monetary awards. A separate noncompensable rating for limitation of left knee flexion is granted, subject to controlling regulations governing the payment of monetary awards ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs