Citation Nr: 1614175	
Decision Date: 04/07/16    Archive Date: 04/25/16

DOCKET NO.  09-43 427	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to a compensable evaluation for chondromalacia of the left knee.

2. Entitlement to a compensable evaluation for chondromalacia of the right knee prior to August 14, 2014, and in excess of 10 percent for degenerative joint disease of the right knee thereafter.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel




INTRODUCTION

The Veteran had active military service in the United States Marine Corps from June 1973 to July 1977.

This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

This case was previously before the Board in July 2014, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development.

In an April 2015 statement, the Veteran requested that "all evidence" be considered prior to the assignment of a disability rating in the instant appeal, specifically including medical evidence submitted after the most recent AOJ adjudication in November 2014.  This statement is ambiguous as to whether he is requesting AOJ review of this additional evidence and he had previously submitted a waiver of AOJ review in November 2014.  Therefore, the Board finds referral to the AOJ is not required and adjudication of the instant appeal may proceed.  See generally 38 C.F.R. § 20.1304 (2015).


FINDINGS OF FACT

1. Chondromalacia of the left knee has been manifest throughout the appeal period by painful motion without objective evidence of compensable limitation of motion, instability or ankylosis of the knee joint, or other impairment of the tibia or fibula.

2. Chondromalacia and degenerative joint disease of the right knee has been manifest throughout the appeal period by painful motion without objective evidence of compensable limitation of motion, instability or ankylosis of the knee joint, or other impairment of the tibia or fibula.


CONCLUSIONS OF LAW

1. The criteria for an evaluation of 10 percent, but not greater, for chondromalacia of the left knee have been met throughout the appeal period.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5262 (2015).

2. The criteria for an evaluation of 10 percent, but not greater, for chondromalacia of the right knee have been met throughout the period prior to August 14, 2014; the criteria for an evaluation in excess of 10 percent for degenerative joint disease of the right knee have not been met at any point thereafter.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256-5262 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Veteran has been provided notice letters throughout the appeal that address all notice elements required.  There has been no allegation of notice error in this case.  See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).

VA must also make reasonable efforts to assist the appellant 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 claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015).

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim to include where warranted by law, affording the claimant VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order.  Finally, there has been substantial compliance with the Board's remand directives, and adjudication of the appeal may proceed.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

Analysis

Board decisions must be based on the entire record, with consideration of all the evidence.  38 U.S.C.A. § 7104.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.  Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts).  See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).

The April 2009 rating decision on appeal continued a noncompensable evaluation for the Veteran's bilateral knee disability.  In a November 2014 rating decision, the AOJ increased the evaluation for the Veteran's right knee disability to 10 percent, effective August 14, 2014, based on a finding of degenerative joint disease of the right knee.  The Veteran asserts an evaluation of at least 10 percent is warranted bilaterally throughout the appeal period.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.

Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement.  38 C.F.R. § 4.45.  With any form of arthritis, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  In cases where a veteran has a noncompensable rating for a musculoskeletal disability, a compensable rating under 38 C.F.R. § 4.59 is for consideration when there is evidence of painful motion even without actual limitation of motion or loss of motion that is non-compensable.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).  In other words, a diagnosis of arthritis is not necessary in order for a compensable rating to be warranted based simply on pain. Id.

Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of the knee, and assigns a 10 percent disabling for a slight impairment, 20 percent disabling for a moderate impairment, and 30 percent disabling for a severe impairment.  38 C.F.R. § 4.71a, Diagnostic Code 5257.  Diagnostic Code 5257 is not predicated on loss of range of motion.  See Johnson v. Brown, 9 Vet. App. 7, 11 (1996).

Under Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.

Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

Separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same knee joint.  See VAOPGCPREC 9-2004.  Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under Diagnostic Codes 5003-5010 and Diagnostic Code 5257 (or under Diagnostic Codes 5258-9) without violating the prohibition of pyramiding of ratings.  It was specified that, for a knee disorder already rated under Diagnostic Code 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261.

Finally, the normal range of knee motion is 140 degrees of flexion and zero degrees of extension.  38 C.F.R. § 4.71, Plate II (2015).

As noted above, the Veteran's left knee disability has been evaluated as noncompensable throughout the appeal period, while his right knee disability has been evaluated as noncompensable prior to August 14, 2014, and 10 percent thereafter.  Having reviewed the evidence of record, the Board finds that separate evaluations of 10 percent are warranted for both the left and right knee disabilities throughout the appeal period based on noncompensable painful motion.  See 38 C.F.R. § 4.59.  However, an evaluation greater than 10 percent is not warranted for either knee disability, as there is no objective evidence of compensable limitation of motion, instability or ankylosis of either knee joint, or impairment of the tibia or fibula.

Turning to the record, at a March 2009 VA examination, the Veteran complained of bilateral knee popping and swelling at times, right worse than left.  He self-treated with Ibuprofen and bracing as needed.  Objective testing revealed full range of motion bilaterally without instability, subluxation, ankylosis or other patellar, meniscus or knee abnormality.  Radiological testing noted a clinical history of pain bilaterally and revealed negative findings with a tiny avulsion of the superior aspect of the left fibula.

At an August 2014 VA examination, the Veteran reported pain approximately four days per week, unrelated to activity.  Objective examination revealed full range of motion of the left leg.  On the right, the Veteran exhibited full extension to zero degrees with flexion limited to 130 degrees of motion.  Joint stability testing was normal bilaterally, and there was no evidence of ankylosis, subluxation or other impairment of the tibia or fibula bilaterally.

VA treatment records show sporadic treatment for complaints of pain with some swelling with occasional use of a brace. In July 2013, his gait was noted to be normal, range of motion was 0 to 130 degrees flexion, no swelling or effusion was present, and the collateral and cruciate ligaments were intact with negative meniscal signs. An April 2013 MRI showed mild chondromalacia. The diagnosis was early osteoarthritis of the right knee.

Even though the March 2009 VA examination found no objective evidence of painful motion, the Board notes the radiological reports accompanying the VA examination report indicates a clinical history of knee pain bilaterally.  Further, the Veteran is competent to report symptoms observable to a layperson, such as pain.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (2009).  As such, resolving all doubt in the Veteran's favor, the Board finds that an evaluation of 10 percent is warranted for both the left and right knee disabilities throughout the appeal period based on painful motion that does not result in compensable limitation of motion.  See 38 C.F.R. § 4.59; Burton, 25 Vet. App. 1.

However, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent for his service-connected knee disabilities based on limitation of motion, or separate evaluation for instability, at any point during the appeal period.  While the Veteran has submitted private medical evidence, this evidence merely supports that he suffers from painful and decreased motion of the knees, but does not provide range of motion findings that would indicate a compensable limitation of motion.  Absent evidence of compensable limitation of motion either on flexion or extension, evidence of ankylosis, or impairment of the tibia, fibula, or meniscus, an evaluation in excess of 10 percent is not warranted based on limitation of motion or impairment of the knee joint, tibia, or fibula, at any point during the appeal period.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258-5263. Moreover, there is no evidence of record that the Veteran's knees are unstable, thus, a separate rating for instability pursuant to 38 C.F.R. § 4.71a, DC 5257 is not warranted.

In sum, as the evidence is at least in equipoise that the Veteran has suffered from painful motion of the bilateral knees throughout the appeal period, a 10 percent evaluation is warranted for both the left and right knee disabilities.  However, neither an evaluation greater than 10 percent nor a separate evaluation based on instability or subluxation is warranted, as a preponderance of the evidence is against this aspect of the Veteran's claim.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis.  The symptoms associated with the Veteran's disabilities (e.g., pain, swelling, and stiffness of the knee that does not result in compensable loss of functional motion) are contemplated by the rating criteria.  The medical evidence fails to show anything unique or unusual about the Veteran's condition that would render the schedular criteria inadequate. Referral for consideration of an extra-schedular rating is not warranted based on symptoms related to service-connected chondromalacia of the left knee and/or degenerative joint disease of the right knee, or on a disability that can be attributed only to the combined effect of multiple conditions.  See Thun v. Peake, 22 Vet. App. 111 (2008); see also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). 





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ORDER

A 10 percent evaluation, but not greater, for chondromalacia of the left knee is granted.

A 10 percent evaluation, but not greater, for chondromalacia of the right knee is granted prior to August 14, 2014.

An evaluation in excess of 10 percent for degenerative joint disease of the right knee as of August 14, 2014, is denied.




____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs