Citation Nr: 1620430 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 12-35 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to a compensable initial rating for right knee patellofemoral pain syndrome. 3. Entitlement to a compensable initial rating for left knee patellofemoral pain syndrome. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2004 to May 2007 and from June 2008 to June 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDINGS OF FACT 1. The Veteran does not have a current left ankle disability due to disease or injury. 2. The Veteran's right knee patellofemoral pain syndrome has been manifested by painful noncompensable limitation of motion. 3. The Veteran's left knee patellofemoral pain syndrome has been manifested by painful noncompensable limitation of motion. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for an initial rating of 10 percent, but not higher, for patellofemoral pain syndrome of the right knee have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2015); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 3. The criteria for an initial rating of 10 percent, but not higher, for patellofemoral pain syndrome of the left knee have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2015); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated June 2012. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's VA treatment records and service treatment records have been obtained and considered. The Veteran was provided VA examinations relating to her claims in August 2012, and additional opinion was obtained in September 2012. The Board finds that the examinations and associated reports are adequate. Along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claims. The reports were based on examination of the Veteran by an examiner with appropriate expertise and a thorough review of the claims file. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service Connection The Veteran seeks service connection for a left ankle disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection requires evidence establishing that the Veteran currently has the disability for which service connection is sought. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the instant case, the evidence of record is against a finding that the Veteran has a current left ankle disability. The Veteran's service treatment records are silent for any complaints or treatment regarding an ankle disorder, despite complaints about knee and hip joint pain. See February 2010 Periodic Health Assessment STR. VA treatment records first show complaints of left ankle pain in May 2012. In a May 2012 statement, the Veteran reported that her ankles would swell and become painful during service, and that they remained swollen and were painful during walking or climbing stairs. In an August 2012 statement, the Veteran reported that she rolled her ankle several times in service from rough terrain encountered when she ran to aircrafts to refuel them in Iraq. She reported that she did not go to sick call because she did not want to appear weak to her drill sergeants and because she had a mission to complete. She reported currently experiencing severe pain in her left ankle. During the August 2012 VA examination, the Veteran reported that her ankle gave out intermittently and stayed somewhat swollen. She also reported decreased motion due to pain during flare-ups. Physical examination noted effusion and edema, but there was no tenderness, redness, heat, inflammation, abnormal movement, instability, guarding of movement, or deformity. X-rays showed joint effusion and mild edema, but no significant internal derangement. The examiner diagnosed ankle effusion with a history of instability not visible on examination. The examiner noted that there was no diagnosis for the cause of the effusion. The September 2012 VA opinion provider noted no objective evidence of a chronic ankle condition, and opined that the Veteran's left ankle effusion was less likely related to service and more likely related to intervening events since service given her active lifestyle and playing softball. VA treatment records show that the Veteran sought treatment for her left ankle pain in December 2012, but no diagnosis was provided. Based on the foregoing, the Board finds that the Veteran does not have a current left ankle disability due to disease or injury that can be subject to service connection. Symptoms such as pain or effusion alone are not disabilities in the absence of an underlying disease or injury for VA disability compensation purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted; "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted"); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of the claimed disability, there can be no valid claim). The Veteran was diagnosed with left ankle effusion, but without an underlying disease or injury. See August 2012 VA Examination Report. Furthermore, as for any direct assertions by the Veteran that she currently has a left ankle disability and/or that there exists a medical relationship between any left ankle disability and service, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matters of diagnosis and etiology here at issue are ones within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). While it is error to categorically reject layperson evidence as to diagnosis or etiology as incompetent, the Board may consider the facts of a particular case to determine the layperson's competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor to consider is the complexity of the question to be determined. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer). The Veteran is certainly competent to provide information with regard to her symptomatology, and such statements are credible. However, the matter of whether the Veteran's symptomatology is due to disease or injury (underlying pathology) is not a matter within the realm of knowledge of a layperson; rather, such are complex questions that require education, training, and expertise for resolution. Id. As neither the Veteran nor her representative is shown to be other than a layperson without appropriate education, training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on the complex medical matters on which this claim turns. Hence, the lay assertions in this regard have no probative value. The medical evidence, which consists of examination revealing no underlying disease or injury with regard to the Veteran's complaints of ankle pain and effusion, is more probative with regard to whether such pathology is present than the Veteran's lay statements. Therefore, the Board finds that service connection is not warranted for a left ankle disability. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Knee Ratings The Veteran contends that she is entitled to compensable ratings for her service-connected patellofemoral pain syndrome of the bilateral knees. 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 (West 2014); 38 C.F.R. § 4.1 (2015). 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 (2015). 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 (2015); 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 (2015). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2015). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Board has considered whether any staged rating periods are warranted. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14 (2015). 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. Id. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2015). 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. It is essential that the examination upon 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2015). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45 (2015). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2015). However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. The Veteran seeks entitlement to compensable initial disability ratings for her right and left knee patellofemoral pain syndrome. Her bilateral knee disabilities are currently rated under DC 5260. See 38 C.F.R. §§ 4.27,4.71a, DC 5260 (2015). DCs 5260 and 5261 assign disability ratings based upon limitation of motion of the leg. Under DC 5260, limitation of flexion to 60 degrees is noncompensable, limitation of flexion to 45 degrees warrants a 10 percent disability rating, limitation of flexion to 30 degrees warrants a 20 percent disability rating, and limitation of flexion to 15 degrees warrants a maximum schedular 30 percent disability rating. Id., DC 5260. Under Diagnostic Code 5261, a 10 percent disability rating is allowed when extension is limited to 10 degrees, a 20 percent disability rating is allowed when extension of the leg is limited to 15 degrees, a 30 percent disability rating is warranted for extension limited to 20 degrees, and a maximum schedular 40 percent disability rating is warranted for extension limited to 30 degrees. Id., DC 5261. With regards range of motion, for rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. Id., Plate II. Under DC 5003, for disabilities rated as arthritis, when limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id. The knee is considered one major joint. 38 C.F.R. § 4.45. In a May 2012 statement, the Veteran reported pain in her knees particularly with certain activities such as going down stairs. May 2012 VA treatment records also note the Veteran's bilateral knee pain. In August 2012, the Veteran reported severe pain in her knees. She reported that she experienced trouble going up and down stairs, experienced an increase in pain and stiffness from sitting or driving for a long period of time, and had difficulty with pain in the morning. She also explained that she had to change her degree because she was unable to complete certain exercises necessary to become a personal trainer due to her knee pain. The Veteran was afforded a VA knee examination in August 2012. At that time, she reported pain in her knees which was worse with prolonged sitting or using stairs. She reported flare-ups which resulted in walking with a limp. Testing revealed normal muscle strength, and no evidence of instability or meniscal conditions. Range of motion testing revealed normal range of motion with no objective evidence of pain, with no change upon repetitive testing. Patellofemoral testing revealed crepitation and pain. The examiner found tenderness or pain to palpation for the joint line or soft tissues of both knees. The examiner found functional impairment of both knees based on intermittent pain. The examiner opined that the bilateral knee disabilities impacted the Veteran's work by requiring changes in position every hour with prolonged sitting. Given the evidence of record, and as discussed below, after resolving any reasonable doubt in favor of the Veteran, the Board finds that 10 percent initial ratings are warranted for the Veteran's right and left knee patellofemoral pain syndrome disabilities. The Board is mindful that the Veteran has consistently reported bilateral knee pain. As noted above, the intent of the rating schedule is to recognize painful motion with joint pathology as productive of disability, and painful motion is an important factor of joint disability which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Additionally, when limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. Moreover, the evaluation of painful motion as limited motion is applicable where, as here, the limitation of motion is noncompensable under the applicable diagnostic code. Mitchell, 25 Vet. App. 32 (2011). Therefore, the Board has resolved any reasonable doubt in favor of the Veteran and finds that her bilateral knee patellofemoral pain syndrome disabilities have resulted in noncompensable painful motion entitled to a minimum 10 percent disability rating for each knee. The Board has also considered whether a disability rating in excess of 10 percent is warranted for any period on appeal. However, as noted, the Veteran's bilateral knee disabilities have not resulted in compensable limitation of motion under the applicable diagnostic codes for any period on appeal. See 38 C.F.R. § 4.71a, DCs 5260-61. Additionally, an increased disability rating is not warranted under alternate diagnostic codes regarding disabilities of the knee. There was no finding of recurrent subluxation or lateral instability upon VA examination. DC 5257. The record also does not suggest that the Veteran has ankylosis, dislocation of semilunar cartilage, symptomatic removal of semilunar cartilage, current impairment of the tibia and fibula, or genu recurvatum, therefore DCs 5256, 5258, 5259, 5262, and 5263 are not for application. DCs 5256, 5258, 5259, 5262, 5263. As such, after resolving any reasonable doubt in favor of the Veteran, the preponderance of evidence of record weighs in favor of an initial 10 percent rating for each of the Veteran's patellofemoral pain syndrome disabilities, but no higher; to that extent only, the claims are granted. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. 49. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1) (2015). The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. Only if the criteria do not reasonably describe the claimant's disability level and symptomatology, then a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). In this case, the lay and medical evidence fails to show unique or unusual symptomatology regarding the Veteran's bilateral knee disabilities that would render the schedular criteria inadequate. The Veteran's symptoms as discussed above are contemplated in the disability rating assigned; thus, the application of the Rating Schedule is not rendered impractical. Moreover, the Veteran has not argued that her symptoms are not contemplated by the rating criteria; rather, she has merely disagreed with the assigned disability ratings for her level of impairment. In other words, she did not have any symptoms from her service-connected bilateral knee disabilities that were unusual or different from those contemplated by the schedular criteria. Nor has she 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). Accordingly, referral for consideration of an extraschedular rating is not warranted, as the manifestations of the Veteran's bilateral knee disabilities are considered by the schedular ratings assigned. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. Finally, a claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran reported that she changed her educational focus to accommodate her service-connected disabilities, but she does not report, and there is no evidence to support, that such disabilities completely preclude her ability to secure and follow a substantially gainful occupation. As such, the Board finds that the issue of entitlement to a TDIU is not raised. Id. ORDER Service connection for a left ankle disability is denied. A 10 percent initial disability rating, but no higher, for right knee patellofemoral pain syndrome is granted. A 10 percent initial disability rating, but no higher, for left knee patellofemoral pain syndrome is granted. ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs