Citation Nr: 1531633 Decision Date: 07/24/15 Archive Date: 08/05/15 DOCKET NO. 10-03 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating, greater than 10 percent, for chondromalacia patella of the right knee. 2. Entitlement to an increased rating, greater than 10 percent, for status-post arthroscopic medial meniscectomy of the left knee with chondromalacia patella. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from November 1974 until March 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied increased ratings for service-connected bilateral knee disabilities. Since that time, original jurisdiction has been transferred to the RO in Detroit, Michigan. The Veteran appealed from the denials, and in October 2010 and April 2012 these matters were remanded by the Board for additional development before being returned for the immediate adjudication. The Veteran testified before the undersigned Acting Veterans Law Judge at a hearing held in Detroit in March 2010. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. Throughout the entire rating period, chondromalacia patella of the right knee has been productive of full range of motion of the knee, without pain, including on repetition. 2. Throughout the entire rating period, status-post arthroscopic medial meniscectomy of the left knee with chondromalacia patella has been productive of full range of motion of the knee, with pain at the extreme end of medial and lateral meniscus maneuvers. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for chondromalacia patella of the right knee have not been met or more nearly approximated at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5299-5014 (2014). 2. The criteria for a rating in excess of 10 percent for status-post arthroscopic medial meniscectomy of the left knee with chondromalacia patella have not been met or more nearly approximated at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5259 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings, Generally Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2014). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2014). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran was previously awarded service connection and assigned initial disability ratings for chondromalacia patella of the right knee, and status-post arthroscopic medial meniscectomy of the left knee with chondromalacia patella. Appeals of the initial ratings are not before the Board; rather the Veteran seeks increased ratings. In claims for increased ratings, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Hart v. Mansfield, 21 Vet. App. 505, 511 (2007). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). On VA examination in March 2009, the Veteran reported that he continued to have pain in both knee joints, more so on the right knee. Pain in both knees was "on-and-off," but averaged a few times a week, and at a level of seven out of ten. Prolonged climbing of more than one flight of stairs caused more pain in both knees, as did kneeling and squatting activities. He reportedly could not walk more than one quarter of a mile before resting due to pain. He had frequent popping, and an occasional sensation of the knees giving out, but no locking, and he did not use a cane or walker for ambulation. A physical examination revealed no swelling, redness, or warmness, and minimal crepitus. There was "[m]inimal vague tenderness over the left knee, and none over the right. The Veteran had no effusion, and no genu varum or valgus deformity. Range of motion of both knees was from zero to 130 degrees, and entirely without pain - to include on repetition - other than the left knee which was "slightly painful at the extreme end of . . . medial and lateral meniscus maneuvers." The examiner noted that joint functionality was not additionally limited by pain, weakness, fatigue, or lack of endurance. During his hearing before the undersigned, the Veteran endorsed symptoms consistent with those findings during his examination, including that he experienced pain doing his duties as a police officer, specifically as such duties require prolonged walking and standing. The Veteran stated that he had been instructed to wear a knee brace, but was unable to do so, due to swelling of his knees to the point that his "pants might get so tight that [he can] hardly walk." Increased Rating for the Right Knee In the decision on appeal, the Veteran's 10 percent rating for his service-connected right knee disability was confirmed and continued, as effective January 23, 1998. Chondromalacia patella of the right knee is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC or Code) 5299-5014. Hyphenated Codes are used when a rating under one Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2014). The appellant's specific disability is not listed in the Rating Schedule, and the RO assigned Diagnostic Code 5299 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and "99." See 38 C.F.R. § 4.20 (2014). The RO determined that the most closely analogous Diagnostic Code was 38 C.F.R. § 4.71a, DC 5014 for osteomalacia. The diseases under DCs 5013 through 5024 are rated based on limitation of motion of affected parts as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5014 (2014). Diagnostic Code 5003 provides that degenerative arthritis is rated on the basis of limitation of motion under the appropriate Codes for the specific joint or joints involved, which in the case of the knee, includes DCs 5256-5262. Id. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate Codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate Codes, the compensable limitation of motion should be rated under the appropriate Diagnostic Codes for the specific joint or joints involved. Id. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. VA considers that normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II (2014). DC 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely be rated 60 percent disabling. Id. DC 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. Id. DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Id. After reviewing the entire claims file, the Board finds that the Veteran's right knee has been not more than 10 percent disabling throughout the period on appeal. Specifically, as shown on examination, the Veteran's has maintained full range of motion of the knee, without pain, including on repetition. In order for a rating of greater than 10 percent, the Veteran's range of motion would need to be functionally limited to 30 degrees of flexion or 15 degrees of extension, or there would need to be evidence of ankylosis. In the absence of such limitations, even when considering such factors as pain, weakness, fatigue, or lack of endurance, a rating of greater than 10 percent cannot be afforded. In addition, while there were some findings showing crepitus, there were no notations showing recurrent subluxation or lateral instability. Hence, a separate compensable rating is not warranted under DC 5257. Accordingly, the Board concludes that the Veteran's right knee disability has been not more than 10 percent disabling, the preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Increased Rating for the Left Knee In the decision on appeal, the Veteran's 10 percent rating for his service-connected status-post arthroscopic medial meniscectomy of the left knee was confirmed and continued, as effective January 23, 1998. The Veteran's left knee is rated under 38 C.F.R. § 4.71a, DC 5259. Under this Code, a 10 percent rating for removal of semilunar cartilage that is symptomatic, but a rating of greater than 10 percent is not available. 38 C.F.R. § 4.71a. Having reviewed the entire claims file, the Board finds that the Veteran's left knee has been not more than 10 percent disabling throughout the period on appeal. Specifically, as shown on examination, the Veteran's has maintained full range of motion of the knee, with pain only at the extreme end of medial and lateral meniscus maneuvers. While such limitation does not warrant a rating of greater than 20 percent under DC 5259, the Board has considered whether a higher rating may be warranted under an alternative Code, but notes that the Veteran does not have functional limitation of motion to 30 degrees of flexion, or 15 degrees of extension, or evidence of ankylosis of the left knee. There were no notations showing recurrent subluxation or lateral instability. Nor is there impairment of the tibia and fibula, or dislocated semilunar cartilage with effusion. Thus, even when considered in the light most favorable to the Veteran, the Board nonetheless concludes that the Veteran's left knee has been not more than 10 percent disabling, that the preponderance of the evidence is against the claim, and that there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration In addition to the foregoing consideration of ratings available under the schedular rating criteria as defined by the above-discussed Diagnostic Codes, the Board has also considered whether referral for extraschedular ratings may warranted for the Veteran's service-connected knees. 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. Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is required. Id. at 115. Here the schedular rating criteria used to rate the Veteran's knees, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of functional limitation of motion and the nature of surgical intervention (e.g., removal of semilunar cartilage). Thus, the demonstrated manifestations - which include difficulty ascending and descending stairs, walking for prolonged distances, and removal of the semilunar cartilage of the left knee - are contemplated by the provisions of the rating schedule, especially to the extent that the Board has taken in to consideration additional functional disability due to factors such as pain, weakness, fatigue, or lack of endurance on repetitive use. Accordingly, the Board finds that the evidence fails to show unique or unusual symptomatology regarding the Veteran's service-connected knee disabilities that would render the schedular criteria inadequate. Additionally, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Nonetheless, the Board has fully considered the Veteran's additional service-connected disabilities of degenerative disc disease of the lumbar spine and status-post inguinal hernia in concluding that referral for consideration of an extraschedular rating is not warranted. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral for consideration of extra-schedular evaluation is not required. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. Finally, the record does not reveal that the Veteran is claiming to be rendered unemployable by virtue of his bilateral knee disabilities, and the Board finds that the record has not raised an implied claim for a total disability rating based on individual unemployability due to service-connected disabilities pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009); thus no discussion or remand of such a claim in warranted. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). A notice letter was sent to the Veteran, prior to the April 2009 initial adjudication on appeal. Notice sent to the Veteran included descriptions of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Moreover, in a hearing before the undersigned, the presiding Veterans Law Judge clarified the issues on appeal and identified potentially relevant additional evidence that the Veteran may submit in support of the claim, including private treatment records, before providing the Veteran with a 60 period in which to submit such records. These actions by the undersigned satisfy the obligations imposed by 38 C.F.R. § 3.103. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). For an increased-compensation claim, the US Court of Appeals of Veterans Claims (the Court) has held that § 5103(a) required, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009), see also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Such notice was provided in the letter sent to the Veteran prior to the RO decision on appeal. VA also has a duty to assist an appellant in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2014); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). The Board finds that VA has satisfied its duty to assist by acquiring service records and by attempting to locate and associate private treatment records with the claims file. During his hearing before the undersigned, the Veteran indicated that he does not receive treatment for his knees at any VA facility, and this the lack of such records does not preclude the Board's adjudication. The duty to assist was further satisfied by VA examination in March 2009, during which the examiner conducted a physical examination of the Veteran, took down the Veteran's history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. While the VA examiner was not provided the Veteran's claims file for review, an accurate history was elicited from the Veteran regarding his knees. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2014); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claims and no further notice or assistance is required. Finally, in October 2010 and April 2012, the Board remanded these issues for additional development, including retrieval of private treatment records. A March 2013 memorandum documents VA's numerous attempts to obtain an up-to-date and current VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA). This form was necessary, as without it VA cannot obtain records from a private provider. Unfortunately, the Veteran did not respond to VA's four separate requests. Given the Veteran's actions, and VA's offers to assist him in developing the claim, the Board finds that VA has no additional duty with regard to request for private treatment records. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). Furthermore, the Board finds that the RO substantially complied with the Board's remand directives, and the Board has properly proceed with the foregoing decisions. See Stegall v. West, 11Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). ORDER A rating in excess of 10 percent for chondromalacia patella of the right knee is denied. A rating in excess of 10 percent for status-post arthroscopic medial meniscectomy of the left knee with chondromalacia patella is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs