Citation Nr: 1547150	
Decision Date: 11/06/15    Archive Date: 11/13/15

DOCKET NO.  13-03 561	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to an increased initial rating in excess of 10 percent for left knee strain with chondrocalcinosis. 


REPRESENTATION

Veteran represented by:	South Carolina Office of Veterans Affairs


ATTORNEY FOR THE BOARD

J. L. Burroughs, Associate Counsel






INTRODUCTION

The Veteran served on active duty from January 1971 to April 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that granted a 10 percent rating for the Veteran's left knee sprain with chondrocalcinosis, after granting service connection for the same.

The appeal was previously before the Board in April 2015 when it was remanded for additional development, including a new VA examination.  It has now returned to the Board for adjudication.


FINDING OF FACT

Even in consideration of his complaints of pain, pain on motion, and functional impairment, the Veteran's left knee disorder has not resulted in flexion limited to 30 degrees or less or extension limited to 15 degrees or more; and, there is no evidence of an active process of his chondrocalcinosis (pseudogout), instability, subluxation, recurrent effusions, or dislocations. 


CONCLUSION OF LAW

The criteria for the assignment of an initial evaluation in excess of 10 percent for left knee disability have not been met.  38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5256-5263 (2015). 





REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015).  VA provided adequate notice in a letter sent to the Veteran in June 2012.  
VA also has a duty to assist the claimant in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Veteran's claim for a higher evaluation is a downstream issue, which was initiated by the notice of disagreement.  The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements..." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  There is no duty to provide additional notice in this case. 

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Service personnel records, service treatment records and VA treatment records, as well as, private treatment records have been obtained.  The claims file also contains the Veteran's and other lay statements in support of the claim.  VA afforded the Veteran adequate examinations, including adequate opinions, of his knee in June 2012 and June 2015.  The Board finds that the VA examinations are adequate because they were based upon review of the pertinent medical history and the examination of the Veteran.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).  

The Board acknowledges that the Veteran has previously argued that his July 2012 VA examination was inadequate, because he was only examined and X-rayed once, with no follow up visit.  See August 2012 Notice of Disagreement.  However, a review of this VA examination shows the examiner elicited substantial information regarding the Veteran's medical history and current symptoms and completed an objective examination of him.  The findings reported appear to be adequate, and there is nothing in the June 2012 VA examination report that leads the Board to believe the examination was less than complete and/or inadequate.  Moreover, the Veteran has since undergone a VA examination in June 2015 that thoroughly addresses his present symptoms.  

Consideration has been given to the June 2015 examiner's statement that he could not possibly determine without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability either during flare-ups or when the joint is used repeatedly over a period of time. He explained that it was not possible to determine that without resorting to speculation because there is no conceptual or empirical basis for making such a determination without directly observing function under such conditions.  He indicated that functional loss could not be quantified on a hypothetical situation.  

In this regard, the examiner clearly explained the reason for speculation and therefore the examination opinion still holds probative value.  See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (noting that a speculative medical opinion is not per se inadequate, but the examiner must provide a basis for that determination).  Indeed, a higher rating cannot be based on medical speculation and certainly not lay speculation. 38 C.F.R. § 3.102 (2015).  Neither the Veteran nor the Board can speculate and arbitrarily pick a disability rating; there must be a basis in fact for the assigned rating.  Id.  The June 2015 examination/opinion is thereby found to adequate.  

A Court or Board remand confers upon the Veteran the right to compliance with that order.  Stegall v. West, 11 Vet. App. 268, 271   (1998).  This matter was remanded, to obtain additional treatment records and afford the Veteran a new VA examination to assess the level of impairment of his service connected left knee disability.  These actions were accomplished, and there has been substantial compliance with the April 2015 Remand.  D'Aries v. Peake, 22 Vet. App. 97, 105   (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).

There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist.  

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).  

In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part.  Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. 

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint.
Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered.  DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5017, gout is rated under the criteria for Diagnostic Code 5002 rheumatoid arthritis.  Diagnostic Code 5002 assigns various ratings based upon whether rheumatoid arthritis is an active process or it is manifested by chronic residuals.  A 20 percent evaluation is warranted when there are one or two exacerbations a year in well-established diagnosis.  For chronic residuals, Diagnostic Code 5002 provides that residuals, such as limitation of motion or ankylosis, favorable or unfavorable, are to be rated under the appropriate diagnostic codes for the specific joint involved.

Diagnostic Codes 5260 and 5261 are used to rate limitation of flexion and of extension of the knee.


Under Diagnostic Code 5260, limitation of flexion of the knee to 45 degrees warrants a 10 percent rating. Limitation of flexion of the knee to 30 degrees warrants a 20 percent rating. And limitation of flexion of the knee to 15 degrees warrants a 30 percent rating.

Under Diagnostic Code 5261, limitation of extension of the knee: to 5 degrees warrants a zero or noncompensable rating; to 10 degrees warrants a 10 percent rating; to 15 degrees warrants a 20 percent rating; to 20 degrees warrants a 30 percent rating, to 30 degrees warrants a 40 percent rating and to 45 degrees warrants a 50 percent rating.). 

Normal range of motion for the knee is defined as follows: flexion, 0 degrees to 140 degrees; and extension, 140 degrees to 0 degrees.  38 C.F.R. § 4.71, Plate II (2015).

Under Diagnostic Code 5256 ankylosis of a knee warrants a 30 percent evaluation if it is at a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. 

Under Diagnostic Code 5257, a 10 percent rating is warranted for slight knee impairment, that is, recurrent subluxation or lateral instability. A 20 percent rating is assigned for a moderate degree of impairment, and a maximum rating of 30 percent is assigned for severe impairment.

It is noted that 38 C.F.R. § 4.71a, Diagnostic Codes: 5258, 5259, 5262, and 5263 provide criteria for a rating disability due to cartilage dislocation, cartilage removal, tibia and fibula impairment, and genu recurvatum.  The evidence is against findings that the Veteran has ever had these conditions.  The Board therefore does not further address these criteria.

The VA General Counsel also has held if the criteria for a compensable rating under Diagnostic Codes 5260 and 5261 are met, separate ratings can be assigned. VAOPGCPREC 9-2004 (September 17, 2004), 69 Fed. Reg. 59990 (2004).



Factual Background

By way of a rating decision dated in July 2012, service connection was established for a left knee disability.  A 10 percent rating was assigned under Diagnostic Code 5621 (limitation of extension), based on pain on motion.

At the time of his first VA examination in June 2012, the Veteran described knee pain, popping and giving way.  However, he reported no history of flare-ups impacting the function of his knee and/or lower leg.  He added that he had not seen a physician regarding his knee in the twelve months prior to his examination.  X-rays of his knee revealed chondrocalcinosis in medial and lateral joint spaces, limited patellofemoral disease with tiny patellar spurs and a possible small effusion.  The examiner noted that there was no X-ray evidence of loss of joint space of the medial compartments.  

Range of motion of the left knee was flexion to 115 degrees with pain at 115 degrees.  There was no limitation of extension.  On physical examination, he had tenderness or pain to palpation for his joint line or soft tissues in the left knee.  There was no ankylosis noted on examination.  Muscle strength was recorded as 5/5 in both flexion and extension.  As to functional loss after repetitive testing, the examiner stated that the Veteran experienced pain on movement, excess fatigability and interference with sitting, standing, and weight-bearing.

Stability testing was normal and there was no evidence or history of recurrent patellar subluxation/dislocation.  He also had no history of meniscal conditions or any tibial and/or fibular impairment.  The examiner indicated that the Veteran occasionally used a cane for ambulation.  At the conclusion of the examination, the Veteran was diagnosed with chondrocalcinosis.  The examiner stated that the Veteran's knee and/or lower leg condition did not impact his ability to work.  

In June 2015, the Veteran was afforded his second VA examination.  He complained of left knee pain and occasional instability.  The Veteran did not report weakness, flare-ups, functional loss or functional impairment of the joint.

Physical examination revealed no evidence of crepitus, ankylosis, pain with weight bearing or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.  The examiner stated that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time.  The examiner rationalized that functional loss cannot be quantified on a hypothetical situation.  

X-rays revealed, and the Veteran was diagnosed with, chondrocalcinosis of articular cartilage and menisci compatible with a diagnosis of calcium pyrophosphate dehydrate deposition disease (CPPD) arthropathy, also known formerly as pseudogout.  The examiner stated that the Veteran's diagnosis did not impact his ability to perform any type of occupational task such a standing, walking, lifting or sitting.  Range of motion of the left knee was flexion to 110 degrees.  Pain was noted on examination, but the examiner stated that it did not result in/cause functional loss.  In extension, there was no pain present and no limitation of motion.  Range of motion was noted as being abnormal or outside of normal range, however it was determined to not contribute to functional loss.  After three testing repetitions, the examiner noted that there was no additional functional loss or range of motion.  Muscle strength was recorded as 5/5 in both flexion and extension.   

Stability testing was again normal and there was no evidence or history of recurrent subluxation/dislocation, lateral instability or recurrent effusion.  The examiner reported that the Veteran was negative for a history of meniscal conditions, any tibial and/or fibular impairment or ankylosis of the left knee.  The examiner indicated that the Veteran now regularly used a cane for ambulation.

In regards to the treatment medical records in evidence, there are few documents which relate to treatment of the left knee.  The records that do relate to the left knee fail to provide any additional information which contradict or add to the findings of either VA examiner. See Charleston VAMC treatment medical records. Similarly, beyond one pain assessment done for both knees, the post Board remand treatment medical records, primarily note treatment for the Veteran's right knee disability, and as such are not probative.  See Charleston VAMC treatment medical records dated from May 2014 through June 2015.  

The Board notes that the record includes evidence which pertains to the Veteran's pending claim for service connection for a right knee disability that has yet to be adjudicated.  With that said, he has reported suffering from swelling of the knee that required hospitalization at Waccamaw Community Hospital.  See September 2012 Statement.  Although, the Veteran's statement does not indicate which knee received treatment, emergency room records reflect that the Veteran only sought and received treatment for his right knee.  See Waccamaw Community Hospital/Georgetown Memorial Hospital treatment medical records dated in September 2012.  As was detailed above, the clinical medical evidence of record is negative for reports of left knee swelling.  Therefore, this contention will not be attributed to his left knee claim.

Analysis

The Veteran has a current left knee disability that is diagnosed as chondrocalcinosis of articular cartilage and menisci compatible with a diagnosis of CPPD arthropathy, also known formerly as pseudogout.  See June 2015 VA examination report.

As the Veteran's disability is referred to as pseudogout the RO has considered his condition under Diagnostic Code 5017 for gout which is rated under Diagnostic Code 5002 for rheumatoid arthritis.  Diagnostic Code 5002 rates rheumatoid arthritis as either an active or inactive process.  The evidence of record does not establish that the Veteran's diagnosed left knee disability has been active.  He does not argue the contrary.  A higher rating based on there being an active process would thereby be inappropriate.  

Diagnostic Code 5002 also considers chronic residuals such as limitation of motion or ankylosis, favorable or unfavorable.  Where limitation of motion of the specific joint or joints involved is noncompensable under the codes, a rating of 10 percent is applied, for the major joint or minor joints affected by limitation of motion.  This 10 percent has been applied to the Veteran's claim.

The Board will now consider whether a higher, alternative or separate rating is warranted under other diagnostic code criteria.

Under Diagnostic Code 5260 the Veteran's reported flexion between 110 to 115 degrees, although limited, is well beyond the 60 degrees required to obtain even a non-compensable rating.  Thus, a rating in excess of 10 percent is not warranted under Diagnostic Code 5260.

Under Diagnostic Code 5261 the medical evidence of record reflects that the Veteran has continually had full extension of the left knee.  The Veteran is therefore not entitled to a rating in excess of 10 percent under Diagnostic Code 5261.  Further, as the medical findings previously discussed do not establish limitation of the left knee's extension, separate evaluation pursuant to VAOPGCREC 9-2004 is not appropriate.

With regard to assigning a higher disability rating based on functional loss as contemplated by the Court's holding under Deluca, the Board acknowledges the Veteran's complaints of knee pain and weakness. 

As to the Veteran's assertion that his left knee weakness causes a loss of functionality, the record does not support that the Veteran suffers from such a condition.  Specifically, treatment medical records and VA examination reports do not reflect that the Veteran has ever reported weakness or weakness to the point of loss of function.  Significantly, beyond the Veteran's Notice of Disagreement the record is silent as to loss of functionality due to weakness.  The Board recognizes that non-expert witnesses are competent to report that which they have observed with their own senses, such as weakness.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Here, the Veteran is certainly competent to describe his observation and the Board does find his statement credible, however it is found to be less persuasive then the entirety of the record.

In regards to the Veteran's reports of pain on motion, he was granted a 10 percent disability evaluation based on noncompensable limitation of motion that was accompanied by pain.  Even with reported flare-ups and chronic pain, the most probative evidence of record in the form of the treatment records and examination reports shows that the Veteran's knee disability is not manifested by limitations in range of motion, to include as a result of pain, weakness, fatigability, or incoordination, beyond the limitations already described.  A higher rating for pain by itself is not warranted, as the symptom is factored into the evaluation of his knee disability under the diagnostic codes pertaining to knee/joint disorders.  See Spurgeon v. Brown, 10 Vet. App. 194, 196   (1997) (observing that section 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes pertaining to musculoskeletal function); see also Mitchell, 25 Vet. App. at 43 (pain must actually affect the normal working movement of the body part in question to warrant a higher rating).  In other words, the current evaluation already contemplates the Veteran's functional loss.  For the stated reasons, an increased rating under Deluca is not applicable.

The Board has also considered Diagnostic Codes 5256 and 5257 and finds that neither are applicable.  

Diagnostic Code 5256 requires ankylosis, which is immobility and consolidation of a joint.  See Dorland's Illustrated Medical Dictionary 86 (28th ed., 1994).  As the Veteran demonstrated extension and flexion in the knee on all examinations of record and has no diagnosis of ankylosis, Diagnostic Code 5256 is not applicable.

Diagnostic Code 5257 is also not applicable as it requires a showing of recurrent subluxation or lateral instability, which has not been established by the evidence of record.  Although the Veteran reports occasional instability of the left knee, it has never been found on examination.  The record reflects no findings of instability or subluxation in the left knee in VA examination reports or in treatment medical records.  If he did have instability or subluxation, the Board would expect to find some objective evidence in the VA examinations or his treatment medical records.  That there is no such objective evidence on examination is itself probative of a finding that he has not had instability or subluxation over all the course of this appeal.  

The Board finds the Veteran competent and credible to describe his instability.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, his statements are found to be less persuasive then the entirety of the record.  In this case, objective medical findings by skilled professionals are more persuasive, which as discussed above do not support a higher rating or additional separate ratings for the left knee.  In essence, the lay evidence, while accepted as credible, does not provide a basis for a higher evaluation.    

In sum, the Veteran retains substantially full range of left knee motion, with no objective evidence of ankylosis, instability or recurrent subluxation into the joint.  His disability has also not been shown to be in active process.  The Veteran's left knee disorder consequently does not approximate the criteria for higher or separate ratings.  The claim for an initial rating in excess of 10 percent is denied. 38 C.F.R. § 4.3.

Extraschedular Rating

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b) (1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589   (1991).  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60   (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2015); see also Fanning v. Brown, 4 Vet. App. 225, 229   (1993).

In Thun v. Peake, 22 Vet. App. 111, 115-16   (2008), the United States Court of Appeals for Veterans Claims (Court) set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule.  If so, the rating schedule is adequate and an extraschedular referral is not necessary.  If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating.

As to the Veteran's service-connected left knee disability, the evidence of record does not reflect that the disability picture is so exceptional as to not be contemplated by the rating schedule.  There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria.  The rating criteria for the Veteran's currently assigned 10 percent disability ratings contemplates his complaints of pain and limited range of motion due to pain. Veteran's limited range of motion measurements are also adequately contemplated by the rating schedule.  Notably, 38 C.F.R. §§ 4.40 and 4.45 adequately contemplate any functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of the joint.  The Board has also considered all other diagnostic codes for the knee to ensure all knee symptoms are adequately evaluated.  As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.

In short, the evidence does not support the proposition that the Veteran's service-connected left knee disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1)  (2014).  Referral of either of these issues to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted.

For all of the foregoing reasons, the Board finds that an evaluation in excess of 10 percent under Diagnostic Codes 5002, 5017 and 5256-5263 is not warranted for the left knee at any time during the appeals period.  In reaching the above-stated conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claims of entitlement to increased rating, that doctrine is not applicable.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2015); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).


ORDER

An initial disability 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