Citation Nr: 1623557 Decision Date: 06/13/16 Archive Date: 06/29/16 DOCKET NO. 14-01 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial rating higher than 10 percent for left knee degenerative arthritis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service in U.S. Marine Corps from June 2006 to November 2006 and from December 2008 to September 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection for left knee degenerative arthritis and assigned a 10 percent rating effective October 1, 2009. The Agency of Original Jurisdiction (AOJ) is the RO in Los Angeles, California. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in September 2014. A copy of the hearing transcript is of record. The matter was then remanded by the Board in July 2015 for additional development. That development has been completed, and the case now returns to the Board for further review. FINDING OF FACT Left knee degenerative arthritis has been manifested by full extension and at least 130 degrees of flexion. Locking, effusion, instability and subluxation have not been demonstrated. CONCLUSION OF LAW The criteria for an initial rating higher than 10 percent for left knee degenerative arthritis have not been met. REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating A. Applicable Laws Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2015). The Veteran's left knee disability is currently rated under Diagnostic Code (DC) 5260. However, there are several diagnostic codes generally applicable to knee disabilities found in 38 C.F.R. § 4.71a. Under DC 5260, limitation of flexion of the leg, a 0 percent rating is assigned when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. Under DC 5261, limitation of extension of the leg, a 0 percent rating is assigned for a limitation of extension of the leg to 5 degrees. When extension is limited to 10 degrees, a 10 percent rating is assigned. In evaluating range of motion, VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss. DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, under DC 5257, recurrent subluxation or lateral instability warrants a 10 percent rating if slight, a 20 percent rating if moderate, and a 30 percent rating if severe. The words "slight," "moderate," and "severe" are not defined in the Rating Schedule, and the Board must evaluate all of the evidence to the end that its decisions are "equitable and just" under 38 C.F.R. § 4.6. Additional diagnostic codes pertaining to the knees, specifically ankylosis of the knee (DC 5256), dislocated semilunar cartilage (DC 5258), removal of semilunar cartilage (DC 5259), impairment of the tibia and fibular (DC 5262), and genu recurvatum (DC 5263) will not be addressed in this decision, as the evidence does not demonstrate that the Veteran has been diagnosed with these conditions during the appeal period or otherwise manifests the symptoms contemplated by these diagnostic codes. Finally, DC 5003 addresses degenerative arthritis, but because the Veteran's condition is limited to a single knee joint, a higher rating is not available through this code. 38 C.F.R. § 4.71a, DC 5003. B. Evidence and Analysis Based on the evidence, the Board finds that a rating higher than 10 percent for left knee degenerative arthritis is not warranted. As noted above, a higher rating under DC 5260 requires flexion limited to 30 degrees. However, the Veteran's knee did not manifest this level of impairment at any point during the appeal period. During an October 2009 VA examination, flexion was 140 degrees, without any demonstrated pain, and was unchanged after repetitive testing. VA treatment records from May 2010 document full range of motion. A February 2011 VA examination recorded left knee flexion of 140 degrees without pain, and limited to 130 degrees after repetitive testing. During the most recent March 2015 VA examination, flexion was 140 degrees. Pain was noted during flexion testing and with weight bearing, but flexion was unchanged after repetitive testing, and there is no indication that any functional loss associated with pain resulted in a level of impairment equivalent to flexion of 30 degrees. Similarly, a compensable rating under DC 5261 requires extension limited to 10 degrees, but this level of impairment was also not present during the appeal period. The October 2009, February 2011, and March 2015 VA examinations all documented full extension (0 degrees) in the left knee without pain, and unchanged after repetitive testing. VA treatment records from May 2010 document full range of motion. The Board has also considered a compensable rating under DC 5257, which requires "slight" instability or recurrent subluxation. During his October 2009 and February 2011 examinations, the Veteran reported "giving way" among the symptoms associated with his knee. However, stability of the left knee was normal during all three VA examinations. VA records dated May 2010 also show no instability, and a June 2012 MRI indicated no ligamentous injury was present. The Board has considered the Veteran's statement that his knee gives way, but finds that his subjective reports, when viewed collectively with the lack of any objective findings of lateral instability or recurrent subluxation , do not warrant a separate compensable rating under DC 5257. C. Extraschedular Consideration 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). 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. If the criteria do not reasonably describe the claimant's disability level and symptomatology, 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"). See id. In this case, the lay and medical evidence of record fails to show unique or unusual symptomatology regarding the Veteran's service-connected knee disability that would render the schedular criteria inadequate. As discussed above, the Veteran's symptoms (pain, decreased range of motion, complaints of instability) are contemplated in the assigned schedular rating. Thus, the application of the Rating Schedule is not rendered impractical. Moreover, the Veteran has not argued that his symptoms are not contemplated by the rating criteria; rather, he has merely disagreed with the assigned disability ratings for his level of impairment. In other words, he does not have any symptoms from his service-connected left knee disabilities that are unusual or different from those contemplated by the schedular criteria. The Veteran has also not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, referral for consideration of an extraschedular rating is not warranted, as the manifestations of the Veteran's service-connected disability on appeal 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. II. The Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), 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. Here, the Veteran was provided with the relevant notice and information in a September 2009 letter prior to the initial adjudication of his knee claim. Indeed, his initial service connection claim was granted, and therefore any error in the initial notice provided to him was harmless. An additional letter dated August 2011 informed him that he may submit evidence showing an increase in the severity of his left knee condition, and a November 2015 letter requested him to provide any relevant treatment records or sufficient information for VA to obtain records on his behalf. He has not alleged any notice deficiency at any point during the adjudication of his claim. VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's VA treatment records have been obtained and associated with the claims file. He was also provided with several VA examinations which contain descriptions of the history of the disability at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating his left knee disability. Finally, the Veteran also had a hearing before the Board. The hearing was appropriately conducted as the presiding VLJ duly explained the issue and identified possible sources of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position. In light of the above development, there has been substantial compliance with the Board's July 2015 remand directives. ORDER An initial rating higher than 10 percent for left knee degenerative arthritis is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs