Citation Nr: 1617120 Decision Date: 04/29/16 Archive Date: 05/04/16 DOCKET NO. 12-12 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to a rating in excess of 10 percent for right knee synovitis with degenerative arthritis and Baker's cyst. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from June 1993 to June 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2010 (knee) and September 2015 (hearing loss) rating decisions by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Portland, Oregon and Denver, Colorado, respectively. The claims are now properly before the Denver, Colorado RO. The Veteran appeared and testified at a Board videoconference hearing in March 2016 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the Veteran has not expressly raised, and the record has not reasonably raised, that his right knee disability or other service-connected disabilities render him unemployable. The Veteran indicated he was employed fulltime at the time of the March 2016 Board hearing. Therefore, the issue of TDIU is not addressed in this remand. The issue(s) of entitlement to service connection for hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right knee synovitis with degenerative arthritis and Baker's cyst was manifested by normal extension, flexion to 125 degrees (at the least), and painful motion. 2. Resolving reasonable doubt in the Veteran's favor, his right knee disability manifested in slight instability throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for synovitis, degenerative arthritis and Baker's cyst of the right knee, based on limitation of flexion, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Codes (DCs) 5003, 5010, 5020, 5260 (2015). 2. The criteria for a separate disability rating of 10 percent for left knee instability have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.71a, DCs 5003-5260, 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA 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. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided the Veteran notice by a letter dated in July 2010. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. Pelegrini v. Principi, 18 Vet. App. 112 (2004). All of the necessary notice was provided before the initial adjudication, there was subsequent readjudication, and so there is no procedural problem. Prickett v. Nicholson, 20 Vet. App. 370 (2006). The VA has provided August 2010 and October 2015 VA examinations regarding the Veteran's claimed knee disability. The examination reports included repetitive range of motion findings, statements from the Veteran, and review of the record. The Veteran described flare-ups of knee symptoms during the examination. Service treatment records and private treatment records are also contained in the claims file. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam); See also 77 Fed. Reg. 23128 -01 (April 18, 2012). At the March 2016 hearing, the undersigned identified the increased rating issue on appeal. The service connection claim is not yet properly on appeal. The Veteran appeared at his hearing without a representative, and the VLJ asked him questions regarding his ongoing right knee symptoms, their severity, whether he had instability or locking, and the impact of his symptoms on his daily life. The Veteran provided testimony as to all treatment received for his knee. The duties imposed by Bryant were thereby met. There is no indication in the record that any additional evidence, relevant to the issues decided, are available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his 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. 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. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.) Where entitlement to compensation has already been established, as is the case here, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10 , 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Factual Background and Analysis In June 2010, the Veteran filed a claim for an increased rating for his right knee. The claim was a form submission, without additional statement. Prior to his claim, during March 2006 VA treatment, the Veteran stated that his knee "gives out occasionally and weather changes bother it." His right knee was noted to have a history of "some locking." In January 2007, the Veteran was afforded a VA examination. At the time he was employed as a policeman and having gradual worsening of pain in his right knee. He reported that walking was limited to three or four minutes by his right knee. "Knee has some feelings of instability, mostly a feeling of weakness. There is no collapsing or locking of either knee." His knee range of motion was from zero to 135 degrees with pain on movement "quite bothersome" on the right. He had bilateral patellar pain and crepitation. His right medial joint line was tender. His "ligaments were normal." His McMurray and Lachman tests were negative. He was assessed with "right knee pain and instability is diagnosed as chronic synovitis plus possible derangement of medial meniscus." Following his claim for an increased rating, the Veteran was afforded another VA examination in August 2010. He reported knee pain which allowed for driving for two hours, and walking up to 30 minutes, but with worsening knee symptoms. "The right knee has pain and collapsing. Instability at the right knee is a feeling of weakness." The Veteran had knee range of motion from zero to 135 with moderate pain through the full motion. He had patellar pain and crepitation of both knees, moderate in the right. He had tenderness of the medial joint line. His "ligaments are normal" and his McMurray and Lachman tests were negative; there was no lateral instability or subluxation. The assessment was of chronic right knee pain at the medial and patellar portions of the joint. He had "continuing symptoms of pain and instability diagnosed as chronic synovitis with symptomatic patellar chondromalacia." The examiner noted that medial joint pain suggested a possible derangement of the medial meniscus. X-ray of the knee was normal, and an MRI was suggested. A private May 2012 musculoskeletal evaluation of the Veteran's right knee included a positive patella "apprehension" test, and positive lateral meniscus test. His other patella, meniscus and laxity tests were negative. His knee pain was sharp, aggravated by movement and associated with symptoms of crepitus, decreased mobility, limping, numbness, popping and swelling. Regular exercise was "difficult" and his knee would swell. He was diagnosed with chondromalacia patella. A July 2012 private treatment record noted the Veteran complained of right knee pain that was sharp and throbbing, and was aggravated by bending, climbing and descending stairs, lifting, movement, walking and flexion. He had "normal flexibility" and his knee was non-tender. He had crepitation. Laxity testing was all negative for the right knee. Meniscal tests, both lateral and medial, were negative. His range of motion was from zero to 125 degrees. An MRI was reviewed, and the Veteran appeared to have a chondral lesion, specifically the medial femoral condyle. The physician thought the Veteran likely had unstable cartilage and a possible loose body in the notch. He did not have a meniscus tear. "He is fairly symptomatic and has not improved so we decided on a diagnostic arthroscopy." A copy of the MRI results noted that his cruciate and collateral ligaments were normal. There were mild tricompartmental degenerative changes and a small Baker's cyst. The MRI report noted the Veteran complained of instability. An x-ray of the knee was "normal." In September 2012, the Veteran underwent the private diagnostic arthroscopy. The operation report noted that the postoperative diagnosis was of "right knee grade 3 chondromalacia, medial femoral condyle and patellofemoral joint." During the operation it was noted that the anterior cruciate ligament and posterior cruciate ligament were intact. The medial compartment demonstrated grade 3 chondromalacia over the weightbearing surface with a lot of loose cartilage, which was debrided. The medial meniscus looked good, and the medial compartment looked good. The lateral meniscus also appeared to be intact. In his February 2013 statement, the Veteran stated that his knee had worsened, to include an "inability to ambulate due to the mobility and range of motion of the affected limb, flexibility and swelling." He indicated that private treatment found degeneration of the cartilage, multiple Baker's cysts and decreased mobility caused by these factors." He indicated that he was "unable to get down on [his] knee due to pain and lack of function." The Veteran most recently had a VA examination in October 2015. He reported a history of undergoing arthroscopy in September 2012, and a series of Synvisc injections with only temporary relief of his symptoms. He reported constant knee pain, worse in cold weather. He reported he could not run for prolonged periods of time without experiencing knee pain and swelling. His range of motion was from zero to 135 degrees. There was no additional loss of motion with repeat testing. The examiner noted that the pain noted on examination did not result in or cause functional loss. The Veteran had tenderness along the inferomedial aspect of the knee and the posterior aspect of the knee joint. There was no objective evidence of crepitus. The examiner reported he was unable to say if pain, weakness, fatigability or incoordination significantly limit the ability of the knee with repeated use over a period of time, without resorting to mere speculation. The Veteran did not have knee ankylosis and had full strength in his knee joint. Joint stability tests were normal. He had a normal anterior instability test, posterior instability test, medial instability test, and lateral stability test. The examiner indicated that the Veteran had not had a meniscus (semilunar cartilage) condition. The Veteran's right surgical knee scar was not painful or unstable and did not cover a total area of 39 sq. cm. or greater. An October 2015 x-ray showed trace right knee joint effusion and synovitis with no significant degenerative changes. A May 2015 MRI showed mild tricompartmental degenerative changes and a Baker's cyst. Regarding the functional impact of the Veteran's right knee, he reported he could not stand or walk for prolonged periods of time without resting his knee, and he could not perform duties which required him to run for long distances. He reported needing frequent breaks to ice his knee. In March 2016, the Veteran was testified at a Board hearing that his right knee injury affected "everything that he does in life." He noted that his knee impacted his ability to be active, to run or play sports. If he is active, he has to ice his knee afterwards because it will swell and ache. He also felt that he did not have the range of motion that "most people would." He stated his 2012 surgery did not improve his knee symptoms. He stated that he had "no cartilage in my knee..they scoped it." He stated he guards his movements, sitting or taking stairs or walking, because he knows that he will have sharp pain with certain movement. He stated he now has a recurring Baker's cyst on the back of his knee. The more fluid in the Baker's cyst, the more pressure there was in his knee. Regarding instability in his right knee, the Veteran stated he felt that his knee would give way if he put too much pressure on it. He stated that some days when he was at work he would feel his knee "slip." His instability was not constant, but the more he did during the day, such as working a full work day or getting exercise, then he would feel his knee was unstable. He stated that his knee affected his job because his job required travel, he would have pain with carrying his bag in the airport, sitting on an airplane for periods of time, and walking and driving were common parts of his employment. He stated that he feels the pain in his knee "every second of every day", such that it might be lighter, but it never goes away. He stated an average day caused pain on the scale of 7 to 7.5 out of 10. He reported he has participated in the physical therapy exercises suggested to him via the VA, but that he otherwise does not have ongoing knee treatment other than a yearly checkup. "Stairs are horrible...puts a lot of pressure on the under part of [his] knee." He described increased pain and instability when attempting to go up or down a hill. He felt he had fallen probably three to four times in the past year. He stated he first fell from his knee instability "a couple years" prior. He felt he did not have the maneuverability or range of motion of the average person, and that, despite only being 40-years old, he felt his knee prevented a lot of his activities. Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes (DCs) that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). Diagnostic Code 5257 provides that an evaluation of 10 percent is assigned for slight recurrent subluxation or lateral instability, an evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. Diagnostic Code 5260 pertains to limited flexion of the knee. Flexion limited to 60 degrees is noncompensable. A 10 percent rating applies when flexion is limited to 45 degrees. A 20 percent rating applies when flexion is limited to 30 degrees. A 30 percent rating applies when flexion is limited to 15 degrees. Diagnostic Code 5259 provides a 10 percent rating for symptomatic removal of semilunar cartilage. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. The VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 (which provides for a 10 percent rating for a noncompensable limitation of motion or painful motion of an affected joint) and 5257, provided that a separate rating must be based upon additional disability. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Also, separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same knee, the limitations must be rated separately to adequately compensate for functional loss associated with the disability. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Regarding the Veteran's claim for an increased rating for his right knee synovitis with arthritis and Baker's cyst, the Board finds that an increased rating is not warranted. Synovitis is listed under Diagnostic Code (DC) 5020, and directs that this disease should be rated on limitation of motion of the affected part, as degenerative arthritis. Under DC 5003 (degenerative arthritis), a rating of 10 percent is for application for each major joint or group of minor joints affected by noncompensable limitation of motion. An increased rating of 20 percent is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. Although there is radiographic evidence of degenerative changes of the right knee (the basis for the RO's grant of 10 percent) , a 20 percent evaluation is not warranted under DC 5003 as the Veteran's service-connected right knee disability clearly involves only one major joint. Additionally, the evidence of record shows that the Veteran's right knee flexion is, at most, limited to 125 degrees. As such, the Veteran does not meet the requirements for a 20 percent rating under DC 5260, as his range of motion is not limited to 30 degrees. The Board notes that the Veteran has stated that with exercise or increased activities he has a noticeable increase in pain. He has stated that he "pays for" working out when his knee swells and he has increased pain. He has also stated he does not have a full range of motion in his right knee. It is possible that the Veteran has a further decrease in his right knee range of motion after working out or a full day of work, which was not reflected in the repeated range of motion tests provided during his examination. However, the examiners (and the Board) are unable to determine an additional loss of motion with the evidence achieved through the VA examinations without resorting to speculation (essentially, guessing). Given that the next rating of 20 percent is not provided until flexion is limited to 30 degrees, and the lowest flexion recorded for the Veteran was 125 degrees, the likelihood of a flare-up diminishing his flexion to the next rating criteria level (30 degrees) appears unlikely. As such, the Board finds that a rating in excess of 10 percent rating for degenerative arthritis with painful motion, is not warranted. The evidence of record has consistently shown the Veteran to have a full range of extension motion, so a separate rating under DC 5261 is not warranted. Currently, the Veteran is not compensated for instability of the right knee. He has provided credible and ongoing complaints of instability and giving way, dating back to at least 2007. He underwent surgery in 2012 to remove loose cartilage. He has stated that his instability occurs after a full day of work, which involves walking, standing, driving, etc. Essentially, the Veteran has stated that his feeling of giving way occurs when his knee is fatigued, and this is noted in his 2010 VA examination. The examiner's diagnosis was "continuing symptoms of pain and instability diagnosed as chronic synovitis with symptomatic patellar chondromalacia." Although objective testing has concluded that that the Veteran's right knee ligaments are stable, his statements indicate that his instability is onset after repeated use throughout the day. Despite a lack of objective evidence of instability, the Board finds that a separate rating for slight instability is warranted based on the Veteran's consistent and credible testimony. A rating in excess of 10 percent for instability of the right knee is not warranted. The Board finds that the instability is not moderate or severe since it has not been objectively evidenced through testing, and the Veteran describes the onset of instability as occurring once the knee has been fatigued by a day of use or exercise/sports. The Board notes that there is not a specific DC which addresses a Baker's cyst, and thus any symptoms from the Baker's cyst would be analogously rated. The Veteran has described additional pressure and pain as a result of his Baker's cyst, when it is inflamed or filled with fluid. His painful motion is currently receiving compensation through DC 5003-5260. To the extent that the Veteran's Baker's cyst also impacts the stability of his knee, this symptom is additionally separately compensated under DC 5257. To provide an additional, separate rating for his Baker's cyst pain with motion would be against the principal of pyramiding. See 38 C.F.R. § 4.14 (the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities). Regarding possible additional or higher ratings under DCs 5258 and 5259, the Board notes that the Veteran was never diagnosed with a semilunar cartilage condition (to include tear or dislocation), in that his menisci were seen to be intact during diagnostic arthroscopy. Additionally, DC 5259 would not provide the Veteran with an increased rating, and the Veteran could not receive the 20 percent rating under DC 5258 because he has not endorsed frequent episodes of locking nor had episodes of dislocated cartilage. As noted above, the Veteran is now receiving separate ratings for his painful range of motion, with noncompensable loss of motion, and his slight instability of the knee. The record does not show that the Veteran has right knee ankylosis, genu recurvatum, or tibia and fibula impairment, thus evaluation under DCs 5256, 5262 and 5263 are not applicable. Notably, the Veteran's scar from his surgery was less than 39 square cm, and was not unstable or painful. As such, his scar does not warrant a separate compensable rating. The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.") Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology to include pain, reduced motion and instability, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Additionally, the Board has considered multiple DCs in an attempt to provide the Veteran with a higher rating. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER Entitlement to a rating in excess of 10 percent for right knee synovitis with degenerative arthritis and a Baker's cyst, is denied. Entitlement to a separate 10 percent rating for right knee instability is granted. REMAND In a February 2015 rating decision, the RO denied entitlement to service connection for hearing loss. In September 2015, the Veteran submitted a timely notice of disagreement with the RO's denial. A statement of the case has not been issued by the RO, and the claim must be remanded. See Manlicon v. West, 12 Vet. App. 238 (1999). After the RO has issued the statement of the case, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Issue a statement of the case (SOC) regarding the Veteran's claim of entitlement to service connection for hearing loss. The Veteran should be informed that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning this claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs