Citation Nr: 1513589 Decision Date: 03/30/15 Archive Date: 04/03/15 DOCKET NO. 09-48 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial rating in excess of 10 percent for arthritis, residual right knee injury, status post surgery. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This matter was before the Board in March 2012, November 2013, and October 2014, when it was remanded for further evidentiary development. As will be discussed in greater detail below, substantial compliance with the Board's remand directives has been achieved. See Stegall v. West, 11 Vet. App. 268 (1998). In a November 2013 decision, the Board denied entitlement to an initial rating in excess of 10 percent for right knee scars. That decision is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). FINDINGS OF FACT Throughout the appeal period, the Veteran's right knee disability has been manifested by degenerative arthritis, pain, stiffness, and mild right lower extremity peripheral neuropathy, with no evidence of flexion limited to 30 degrees or extension limited to 10 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent rating for right knee arthritis, residual right knee injury, status post surgery, are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2014). 2. The criteria for a separate initial 10 percent rating for right lower extremity peripheral neuropathy are met for the entire appeal period. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8526 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Regarding VA's duty to notify, in December 2007, the RO sent a letter to the Veteran providing the notice required for his claim of service connection for a right knee disability. Benefits were subsequently granted, and the Veteran appealed the rating assigned. In cases such as this, where the claim has been granted and an initial disability rating and effective date have been assigned, the typical claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). There has been no allegation of such error in this case. Regardless, the Veteran received notification as to the evidentiary requirements necessary to establish a higher initial evaluation via a July 2008 letter. The claim was subsequently readjudicated in an October 2009 statement of the case (SOC) and October 2012, September 2014 and February 2015 supplemental SOCs (SSOCs). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). With respect to VA's duty to assist, all relevant evidence necessary for an equitable resolution of the issue on appeal has been obtained. The Veteran has not identified any pertinent post-service treatment records. He has been afforded multiple VA examinations for his right knee disability over the course of the appeal, including an examination during the winter months to account for flare-ups in cold weather, in substantial compliance with the March 2012, November 2013, and October 2014 remand directives. See Stegall, supra. The Board finds that, collectively, these examinations are adequate for the purposes of the evaluating the Veteran's right knee disability, as each involved a review of the Veteran's pertinent medical history as well as a clinical examination of the Veteran, and provided findings responsive to the applicable rating criteria. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board acknowledges the Veteran's argument that his August 2008 VA examination is inadequate. See March 2008 Notice of Disagreement; see also December 2009 VA Form 9. Essentially, the Veteran contends that the examiner was not involved in the examination, the examination was brief, and that his condition worsens during cold weather. See id. A review of the August 2008 VA examination report does not reveal an inadequacy in that regard. As pointed out in the Board's March 2012 remand, the examiner did not discuss additional limitation due to flare-ups and he was not examined during a period of flare. However, other than that error, which has since been remedied in subsequent examination reports as indicated above, it does not appear that the examiner's other findings were somehow inaccurate. Indeed, the Veteran's perception that the examination was brief does not necessarily render the examination inadequate. The examiner provided several other relevant observations. Nonetheless, later examinations, the adequacy of which the Veteran has not contested, have yielded similar results. As such, his argument is without merit. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Merits Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's right knee disability is rated as 10 percent disabling under Diagnostic Code (DC) 5010-5260. See 38 C.F.R. § 4.27 (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). Traumatic arthritis, pursuant to DC 5010, is to be rated as degenerative arthritis under DC 5003, which is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Under DC 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. 38 C.F.R. § 4.71a, DC 5003. When limitation of motion is noncompensable, under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint group or group of joints affected by limitation of motion to be combined, not added. Id. DC 5260 provides the criteria for limitation of flexion of the knee. Limitation of flexion of the knee to 60 degrees warrants a noncompensable evaluation. Limitation of flexion to 45 degrees will result in the assignment of a 10 percent rating. Limitation of flexion to 30 degrees warrants a 20 percent evaluation and limitation of flexion to 15 degrees warrants a maximum schedular evaluation of 30 percent. Id. Under DC 5261, limitation of extension of the knee to 5 degrees warrants a noncompensable evaluation. Limitation of extension of the knee to 10 degrees warrants a 10 percent evaluation; to 15 degrees warrants a 20 percent evaluation; and to 20 degrees warrants a schedular evaluation of 30 percent. A limitation of extension to 30 degrees warrants a 40 percent evaluation. A limitation of extension to 45 degrees warrants a 50 percent rating. Id. Separate ratings under DC 5260 (limitation of flexion) and DC 5261 (limitation of extension) may be assigned for disability of the same joint. See VAOPGCPREC 9-04. According to VA regulations, normal range of motion of the knee is from zero degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Turning to the pertinent evidence of record, the Veteran was afforded a VA examination in August 2008. At that time, stiffness and fatigability were noted. Pain, weakness, swelling, heat, giving way, and locking were denied. The Veteran also denied flare-ups. The Veteran stated that sudden movements may produce pain; otherwise he denied any pain. The Veteran noted that it was difficult for him to run or climb stairs. He reported occasionally using a walking stick. On physical examination, gait was normal. Right knee extension was normal. The Veteran was able to flex his right knee to 120 degrees, where pain began. Upon repetitive-use testing, pain, weakness, lack of endurance, and fatigue were noted upon flexion. However, additional loss of flexion was not indicated. The knee was described as stable. X-rays revealed degenerative joint disease of the right knee. The Veteran was again afforded a VA examination in June 2012. He reported pain that he treated with aspirin, and on instance of buckling. Following his surgery in 2007, the Veteran reported no further locking up or giving way of his right knee. The Veteran reported pain to the point where he cannot stand. The Veteran reported flare-ups when the weather is cold or rainy. The Veteran displayed flexion to 60 degrees with pain at 50 degrees. There was no limitation of extension. Upon repetitive-use testing, there was no further limitation of flexion and no limitation of extension. Functional loss in the form of lessened movement, weakened movement, excess fatigability, incoordination, pain, disturbance on locomotion and interference with sitting, standing and weight-bearing, was noted. Pain to palpitation for joint line or soft tissues of the right knee was noted. Muscle strength testing and joint stability testing were both normal. The examiner noted no history of patellar subluxation or dislocation. The occasional use of a cane was noted. X-rays showed arthritis of the right knee. The examiner stated that the Veteran has trouble standing for longer than an hour, which caused increased pain and swelling. The June 2012 VA examiner opined that the Veteran experiences mild sensory peripheral neuropathy of the distal branch of the femoral nerve as a result of his right knee disability, since at least January 2007. The Veteran presented for another VA examination in April 2014. There, flare-ups during periods of cold weather were noted. The Veteran displayed flexion to 100 degrees with no objective evidence of pain. The examiner stated that due to flare-ups and pain an estimated limitation of flexion to 80 degrees was appropriate. Extension was normal with no objective evidence of pain. Upon repetitive-use testing, no further limitation of flexion or any limitation of extension was recorded. Functional impairment in the form of lessened movement, weakened movement, excess fatigability, pain on movement, swelling, and disturbance of locomotion were noted. Pain on palpitation was noted. Muscle strength testing was normal. Joint stability was normal. There was no evidence of any patellar subluxation or dislocation. The Veteran denied shin splints. Frequent episodes of joint pain were noted. The Veteran stated that pain sometimes radiates to the right foot. The occasional use of a cane was noted. X-rays showed degenerative arthritis of the right knee. The Veteran reported missing time from work only prior to his surgery in January 2007. A VA examiner provided a medical opinion in June 2014. The examiner explained that the Veteran loses 20 degrees of range of motion during pain on use or during flare-ups. The examiner stated that the Veteran's right knee disability has progressed. The Veteran was afforded a VA examination in January 2015, to account for flare-ups in cold weather. The Veteran reported right knee locking until his meniscus surgery in 2007. After surgery, he has experienced knee pain and stiffness. The Veteran reported more stiffness in the colder months. The Veteran also reported increased symptomatology during increased activity. He reported no trouble walking and he is able to walk a quarter of a mile during cold weather while hunting. He tries to keep his right knee warm with a blanket. Prolonged standing is more difficult than walking. Flare-ups during cold weather and weather fronts were noted. During range of motion testing, the Veteran displayed flexion to 110 degrees and normal extension. There was no pain on weight bearing or evidence of localized tenderness or pain on palpitation. Repetitive use testing did not reveal any further limitation of flexion or any limitation of extension. The Veteran declined to squat for range of motion testing, as that was too painful. The Veteran's range of motion was measured supine and sitting and the examiner described the results as consistent throughout the examination. There was no objective evidence of any pain during the examination. The examiner explained that it would be speculative to state how much range of motion varies between cold and warm months. Nonetheless, this testing was done during a cold month, when the Veteran claims his right knee symptomatology is the worst. The examiner explained that while the Veteran reported flare-ups during cold weather, those flare-ups did not impact his range of motion. Instead, cold weather was noted as causing pain and stiffness. Muscle strength testing was normal. No muscle atrophy was noted. No ankylosis was noted. There was no evidence of any history of recurrent subluxation or lateral instability. Joint testing did not reveal joint instability. There was no evidence of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. The occasional use of a cane was noted. X-rays revealed degenerative arthritis. Functionally, the examiner noted trouble standing and walking for long periods, but no trouble sitting. It was noted that the Veteran changed jobs after his surgery in 2007 to avoid standing on concrete. An initial rating in excess of 10 percent for the Veteran's right knee disability is not warranted. The evidence of record indicates no ankylosis (DC 5256), no subluxation or lateral instability (DC 5257), no dislocated or removal of cartilage (DCs 5258, 5259), no tibia or fibula disorders (DC 5262), and no genu recurvatum (DC 5263). As such, these alternative diagnostic codes need not be addressed. Even when considering any functional loss due to pain or flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59 the Veteran's right knee disability does not meet the criteria for a higher rating under DC 5260 or 5261. Regarding DC 5260, there is no evidence that the Veteran experiences flexion limited to 30 degrees, as required for an increased (20 percent) rating under that DC. Indeed, upon no objective VA examination has the Veteran's right knee disability been shown cause flexion to be limited to less than 40 degrees when considering functional loss due to pain or flare-ups. To that end, even when the Veteran was examined during the winter months, flexion was only limited to 110 degrees, with no pain. See January 2015 VA Examination Report. Indeed, the examiner explained while the Veteran does experience flare-ups during the winter months, those flare-ups do not cause further limitation of motion. An April 2014 VA examiner estimated that, at most, flare-ups would limit the Veteran's right knee flexion to 80 degrees. The author of the June 2014 VA medical opinion opined similarly, concluding that, at most, pain on use or flare-ups would limit the Veteran's right knee flexion by 20 degrees. Applying this additional limitation of 20 degrees to the June 2012 flexion measurement of 60 degrees (his most severe loss of motion objectively demonstrated during the appeal period) would equate to flexion to 40 degrees when considering pain and flare-ups (although the examiner specifically found a limitation with pain to 50 degrees at that time). There is simply no evidence that the Veteran's right knee flexion has ever been limited to 30 degrees, as required for an increased rating under DC 5260. Moreover, there is no evidence of any limitation of extension. Thus, an increased or separate rating under DC 5261 is not warranted. Under DCs 5003 and 5010, a 10 percent rating is appropriate for the Veteran's right knee disability. Even during flare-ups and winter months, the Veteran's limitation of flexion is noncompensable. Likewise, there is no evidence of any limitation of extension. Thus, the Veteran's right knee range of motion is noncompensable under DCs 5260 and 5261, and the Veteran is entitled to a 10 percent rating under DCs 5003 and 5010 for arthritis of the right knee, which results in noncompensable limitation of flexion under DC 5260. The Board acknowledges the Veteran's argument that he is somehow being penalized for having surgery, which has improved his symptomatology. See Notice of Disagreement. While the Board understands the Veteran's concern, the purpose of the Rating Schedule is to compensate a veteran for the average impairment in earning capacity resulting from his service-connected disability. 38 C.F.R. § 4.1. As the competent medical evidence does not reflect the symptomatology necessary for a rating in excess of 10 percent at any point during the period on appeal, the Board is unable to grant the Veteran a higher rating. However, a separate 10 percent rating is warranted for mild paralysis of the anterior crural nerve (femoral) for the entire appeal period under 38 C.F.R. § 4.124a, DC 8526, as identified during the June 2012 VA examination. At that time, the Veteran denied constant and intermittent pain, paresthesias and/or dysesthesias in the right lower extremity, but endorsed mild numbness. Strength and deep tendon reflex testing in the right lower extremity was normal. The examiner characterized the paralysis of the femoral nerve as incomplete and mild in severity, and there is no other competent medical evidence of record supporting a rating in excess of 10 percent under DC 8526. See 38 C.F.R. § 4.124a, DC 8526. As noted above, the rating assigned to the Veteran's rating knee scar is the subject of a final Board decision and will not be addressed at this time. The Board has also considered whether referral for extraschedular ratings for the right knee disability is appropriate. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. 38 C.F.R. § 3.321(b). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). As explained in detail above, the Veteran's right knee disability is manifested by pain, stiffness, and some limitation of flexion, symptoms which are specifically contemplated by the pertinent DCs. Hence, the rating criteria reasonably describe the Veteran's knee disability, referral for an extra-schedular rating is not warranted. Id. ORDER A rating in excess of 10 percent for arthritis, residual right knee injury, status post surgery, is denied. A separate initial 10 percent rating, but no higher, for right lower extremity peripheral neuropathy is granted for the entire appeal period. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs