Citation Nr: 1343464 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 08-21 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to a disability rating in excess of 10 percent for left knee degenerative joint disease (a left knee disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active military service from November 1979 to March 1988. This matter is on appeal from a January 2008 decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In February 2008, the Veteran testified at hearing before a Decision Review Officer. A copy of the transcript of this hearing has been associated with the claims folder. In January 2012, the Board affirmed the January 2008 RO decision to reduce the rating assigned for the Veteran's left knee disability from 40 to 10 percent. However, the issue of entitlement to a disability rating in excess of 10 percent for left knee disability was Remanded for further evidentiary development. In a December 2013 Informal Hearing Presentation, the Veteran, through his representative, raised the issue of entitlement to a separate 10 percent rating for meniscectomy of the right knee under Diagnostic Code 5259, effective from May 1989. Reference is also made to the report of an April 2012 VA examination wherein it was noted that the Veteran was pursuing a claim for service connection for an amputation of the left lower extremity. Both issues have been raised by the record. However, as neither issue has been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction and they are referred to the AOJ for appropriate action. FINDING OF FACT The competent medical evidence of record does not show that the Veteran's left knee disability results in flexion limited to 45 degrees, extension limited to 10 degrees, or instability. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.14, 4.40, 4.41, 4.45, 4.71a, Diagnostic Codes (DCs) 5010, 5260, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. The Veteran was notified via letter dated in September 2005 of the criteria for establishing entitlement to an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. The Veteran does not appear to have been specifically informed of how VA determines effective dates. However, as the instant decision denies an increased rating, no effective date will be assigned. Any absence of Dingess notice is moot. No further development is required regarding the duty to notify. Regarding VA's statutory duty to assist in claims development, the record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claims. Pertinent medical evidence associated with the claims files consists of service and VA treatment records and an October 2007 VA examination. In addition, pursuant to the Board's January 2012 Remand, additional VA treatment records were obtained and an April 2012 VA knee examination was conducted. The Board finds that the October 2007 and April 2012 VA examinations are adequate for adjudication purposes. These VA examination reports are comprehensive and adequately address the Veteran's left knee symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that VA substantially complied with the Board's Remand directives in further developing the Veteran's claims. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Also of record and considered in connection with the appeal are various statements submitted by the Veteran and his representative, on his behalf. The Board notes that the Veteran's VA examination from April 2012 is over one-year old. The mere passage of time since that examination is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's left knee disability since the most recent examination. The Veteran has not argued the contrary. Thus, the Board finds that remand for an additional VA examination is not required in this instance. As noted in the Introduction, the Veteran was provided with a DRO hearing in February 2008. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the provisions of 38 C.F.R. § 3.103(c) (2) (2013) require that the hearing officer who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board finds that both duties were met during the hearing. It was clear during the hearing that the Veteran had a full understanding of the issue on appeal. The DRO elicited testimony regarding the severity of the left knee disability. The Veteran's testimony also triggered the Board's decision to Remand the matter to obtain the above-referenced VA treatment records and April 2012 VA DBQ examination. For the above reasons, the Board finds that, consistent with Bryant, VA has complied with the duties set forth in 38 C.F.R. § 3.103 (c) (2) and that the Board can adjudicate the claim based on the current record. It must be noted that neither the Veteran nor his representative have asserted that VA failed to comply with the provisions of 38 C.F.R. § 3.103(c) (2) nor identified any prejudice in the conduct of the DRO hearing. Neither the Veteran nor his representative throughout the course of this appeal has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein. Therefore, in view of the foregoing, the Board will proceed with appellate review. II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2013). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the evidence of record does not establish additional, distinct time periods in which the issue on appeal resulted in symptoms that would warrant staged ratings. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2013). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Secretary shall give the benefit of the doubt to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380- 81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the instant claim. The Veteran claims that his left knee disability is more severe than what is reflected by the currently assigned 10 percent disability rating for degenerative joint disease which is rated under Diagnostic Code 5261-5010. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5261 pertains to limitation of extension of the leg. 38 C.F.R. § 4.71a, DC 5261. Diagnostic Code 5010 pertains to arthritis due to trauma. 38 C.F.R. § 4.71a, DC 5010. Under Diagnostic Code 5260, limitation of flexion of the knee to 30 degrees warrants a 20 percent rating and limitation of flexion to 15 degrees warrant a 30 percent evaluation. Diagnostic Code 5261 provides that limitation of extension of the knee to 10 degrees warrants a 10 percent rating, limitation to 15 degrees warrants a 20 percent rating and limitation to 20 degrees warrants a 30 percent rating. The Board notes that separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Standard motion of a knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. The Board notes that Diagnostic Code 5010 instructs that traumatic arthritis is to be evaluated as degenerative arthritis under Diagnostic Code 5003. Degenerative arthritis 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When, however, the limitation of motion of the specific joint or joints involved is no compensable under the diagnostic codes, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Diagnostic Code 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). Separate ratings may be assigned for a knee disability under Diagnostic Codes 5257 (knee, other impairment) or 5258-5259 (cartilage impairments), and 5010 (for arthritis due to trauma), where there is X-ray evidence of arthritis in addition to recurrent subluxation, lateral instability, or symptoms of locking, pain, and effusion related to the removal or dislocation of semilunar knee cartilage, but only if there is additional disability due to limitation of motion. See VAOPGCPREC 23-97 and VAOPGCREC 9-98. Turning to the merits of the claim, on VA joints examination in October 2007, the Veteran presented with a history of a medical meniscectomy in 1981 and complaints of left knee pain rated from 4 to 7 out of 10 on the pain scale. He had pain over the medial aspect of the joint line and periodic swelling, but no giving out. He did not use a cane or brace on the left knee. Examination of the left knee indicated normal configuration with no signs of effusion or focalized pain or crepitus over the left knee. Range of motion testing was from zero to 115 degrees. After three repetitive motions, there was no additional loss of motion or pain. McMurray's, Lachmann's, and anterior drawer tests were negative. There were no signs of medial or lateral collateral instability. Muscle strength was normal as were distal pulses and reflexes. An X-ray examination revealed degenerative changes. The impression was bilateral knee osteoarthritis. Handwritten notes submitted by the Veteran dated from January 2008 to February 2008 reflect complaints of left knee swelling, cracking, stiffness, pain rated from 6 to 10 out of 10 on the pain scale, difficulty with prolonged walking and driving, and difficult exiting a car. In February 2008, the Veteran testified that he had some left knee pain treated with pain medication rated a 6 to an 8 out of 10 on the pain scale. He testified that he had left knee buckling, snapping, clicking, grinding, instability, problems flexing the knee, flare-ups, swelling, problems ambulating stairs and with prolonged walking, and loss of motion. VA treatment records include a February 2009 X-ray examination of the left knee which showed minimal narrowing of the medial compartment and a diagnosis of arthritis. The Veteran is also shown to have undergone an amputation of the left lower extremity in 2010. The relevant records describe the amputation being the result of uncontrolled diabetes mellitus. The Veteran underwent a VA knee and lower leg conditions examination in April 2012. Reference was made to the him having an amputation that was approximately 20 centimeters below the left knee. There was no indication that the amputation had any effect on the functioning of the knee. Indeed, at the time of the examination, the Veteran reported knee pain rated a 4 out of 10 on the pain scale and from 7 to 8 out of 10 during flare-ups and with prolonged standing, walking, and standing. He complained of giving out which resulted in falls and difficulty with prolonged sitting. Range of motion testing of the left knee indicated normal extension and 120 degrees of flexion with no objective evidence of painful motion. Repetitive use testing did not result in any additional loss of motion of the left knee. However, as there was additional loss of motion with respect to the right knee, the examiner remarked that there was additional limitation in range of motion and functional loss and/or functional impairment of the knees and lower legs due to less movement than normal; pain on movement; swelling; and interference with sitting, standing, and weight-bearing. Muscle strength testing and joint stability were normal without evidence of a history of recurrent patellar subluxation/dislocation. X-ray examination of the left knee indicated degenerative or traumatic arthritis. There was no evidence of patellar subluxation. While the Veteran had not been employed for two years the examiner opined that the left knee disability did not impact his ability to work. Private treatment records include a January 2010 MRI of the left knee whish showed large osteophytes involving the patella. The patellofemoral joint space was preserved and symmetric to the left side. There were patellar osteophytes as well as evidence of vascular calsification and some slight narrowing of the medial joint space. No fracture or dislocation was demonstrated. The impression was osteophyte formation involving the patella. Based on the evidence of record, and for the reasons set forth below, the Board finds that a separate rating or rating in excess of 10 percent assigned for a left knee disability is not warranted under any applicable diagnostic code. As noted above, a 10 percent disability rating is warranted under Diagnostic Codes 5260 and 5261 for limitation of flexion of the knee to 45 degrees and limitation of extension of the knee to 10 degrees. The medical evidence in this case shows that the Veteran's left knee range of motion was from zero to at least 115 degrees. Thus, the medical evidence of record does not show that a compensable disability rating is not warranted based on a limitation of the range of motion under either Diagnostic Codes 5260 or 5261. The Board also finds that the Veteran is not entitled to an increased rating for his left knee disability under Diagnostic Code 5003. Limitation of motion is conceded. However, even presuming there is limited albeit noncompensable motion, as the Veteran is already in receipt of a 10 percent disability rating under a diagnostic code predicated upon limitation of motion (DC 5261), he is not entitled to a separate 10 percent rating under Diagnostic Code 5003. 38 C.F.R. § 4.71a, DC 5003, Note 1. In addition, the Board observes that there was no additional limitation of motion following repetitive-use testing on examination in October 2007 and April 2012. The 2012 examiner merely remarked that there was some loss of function due to pain and swelling. VA and private treatment records also reflect the Veteran's complaints of left knee pain. However, the Board finds that the Veteran's complaints of pain and functional impairment are consistent with, and encompassed by, the assigned 10 percent disability rating. A higher rating based on anticipated pain without any quantifiable loss due to actual pain does not serve as basis for an increased rating. See Mitchell. As such, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent at any time during the pendency of the appeal. The Board has also considered whether a higher disability rating may be assigned under other relevant diagnostic codes. However, as there is no evidence of ankylosis of the left knee, Diagnostic Code 5256 is inapplicable in this case. 38 C.F.R. § 4.71a, DC 5256. Indeed, the Veteran has displayed an ability to flex and extend the left knee as noted above. A higher rating under Diagnostic Code 5257 for knee impairment with recurrent subluxation or lateral instability is also not warranted based on the evidence of record. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. While the Veteran has reported that his left knee would give way, the October 2007 VA examination was negative for signs of medial or lateral collateral instability and on April 2012 VA examination joint stability was normal. As there is no indication of recurrent subluxation or lateral instability, a separate rating under Diagnostic Code 5257 are not warranted. In considering the applicability of other diagnostic codes, the Board notes that Diagnostic Code 5258 provides the rating criteria for dislocation of semilunar cartilage and Diagnostic Code 5259 provides the rating criteria for symptomatic removal of semilunar cartilage. See 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. With regard to Diagnostic Code 5258, there is no evidence of dislocated semilunar cartilage with frequent locking pain and effusion in the left knee to warrant a separate rating under Diagnostic Code 5258. With regard to Diagnostic Code 5259, there is no history of meniscus tear or surgery to the left knee to warrant a separate rating under this diagnostic code. The Board therefore finds that a separate rating of 10 percent is not warranted under DCs 5258 or 5259. The Board has also considered the applicability of Diagnostic Code 5262 (impairment of the tibia and fibula) and Diagnostic Code 5263 (genu recurvatum), but finds that they are not applicable here, as the medical evidence does not show that the Veteran has any of these disabilities. 38 C.F.R. § 4.71a, DCs 5262, 5263. In reaching the above conclusions, the Board has also not overlooked the Veteran's statements in support of his claim. In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g. left knee pain and swelling. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, while the Board may consider the Veteran's subjective statements regarding the severity of the disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. See King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012). Furthermore, the Board finds the objective medical findings provided in the VA treatment records should be accorded the greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches . . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators."). The above determination is based upon consideration of applicable rating provisions. It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1). In this case, there has been no showing that the Veteran's disability picture for his left knee could not be contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for this disability during the period of appeal. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's left knee disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's claim for TDIU was denied by the RO in April 2006, which was not appealed and the claim has not been raised subsequently. Here, the holding of Rice is not applicable, as the TDIU claim has already been previously considered and the evidence of record does not demonstrate that the Veteran has been rendered unemployable due to his service-connected left knee disability. While it appears that the Veteran is currently unemployed (see the October 2007 VA examination) the record does not indicate that he is unemployable due to his service-connected connected left knee disability. In fact, on April 2012 VA examination the examiner opined that the Veteran's left knee disability did not impact his ability to work. In light of the foregoing, the Board finds that a rating in excess of 10 percent for the left knee disability is not warranted as manifestations of this disability were not shown to meet the criteria for a higher rating under any applicable Diagnostic Code. As such, the claim for a higher rating must be denied. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application with regard to this claim. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered additional staged ratings, under Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. ORDER A rating in excess of 10 percent for left knee disability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs