Citation Nr: 1640469 Decision Date: 10/12/16 Archive Date: 10/27/16 DOCKET NO. 09-31 270 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a separate rating for service-connected chondromalacia of the right knee on the basis of instability. 2. Entitlement to a rating in excess of 10 percent for service-connected chondromalacia of the right knee on an extraschedular basis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from April 2002 to October 2002. He served on active duty from January 2003 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran's previously established 10 percent rating for service-connected chondromalacia of the right knee was continued therein. He appealed this determination. During the pendency of his appeal, jurisdiction was transferred to the RO in Boston, Massachusetts. The Veteran testified before the undersigned at a hearing there in November 2013. In February 2014, the Board remanded this matter for additional development. In November 2015, the Board denied a rating in excess of 10 percent for chondromalacia of the right knee. Included within this decision was the denial of a separate rating on the basis of instability (under Diagnostic Code 5257) and the denial of a higher rating overall on an extraschedular basis. The Veteran appealed these determinations. In July 2016, the United States Court of Appeals for Veterans Claims (Court) issued an Order granting a Joint Motion for Partial Remand (JMPR) filed by the Veteran and VA. The Board's decision accordingly was vacated with respect to the aforementioned determinations, and the underlying issues were remanded back to the Board for readjudication. Review of the Veteran's claims file reveals that this readjudication can proceed at this time. FINDINGS OF FACT 1. Although there is no medical evidence of actual instability in the Veteran's right knee, the lay evidence from him concerning pertinent symptoms is competent as well as credible and supported by most of the medical evidence concerning these symptoms. 2. The Veteran's disabled right knee is not so unusual or exceptional that the applicable schedular rating criteria are inadequate, and they are no related factors even if these criteria were inadequate. CONCLUSIONS OF LAW 1. The criterion for a separate rating of 10 percent, but no higher, for service-connected chondromalacia of the right knee on the basis of instability have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2015). 2. Referral for consideration of the assignment of an extraschedular rating for service-connected chondromalacia of the right knee is not warranted. 38 U.S.C.A. § 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters VA has a duty to notify a claimant seeking VA benefits. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. Notice must be provided prior to initial adjudication of the evidence necessary to substantiate the benefit(s) sought, that VA will seek to obtain, and that the claimant should submit. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). For higher ratings, general notice of the evidence for substantiation is sufficient. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Notice of how ratings and effective dates are assigned finally must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged any notice error, whether with respect to content or timing, as required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). A June 2007 letter set forth the general criteria for establishing a higher rating, the evidence required in this regard, and the Veteran's and VA's respective duties for obtaining evidence. It also set forth how ratings and effective dates are assigned. This was prior to initial adjudication via the February 2008 rating decision. November 2008 letters reiterated much of the aforementioned information. One even set forth some of the criteria for establishing a higher rating specifically for the Veteran's disability, a requirement that was eliminated during the pendency of his appeal. In addition to the duty to notify, VA has a duty to assist a claimant seeking VA benefits. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This includes, as suggested from the notice that must be provided, aiding the claimant in the procurement of relevant records whether they are in government custody or the custody of a private entity. 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). A VA medical examination also must be provided and/or a VA medical opinion procured when necessary in order to render a decision. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Neither the Veteran nor his representative has identified any outstanding records. The few available VA treatment records are too dated to be useful. A few older private treatment records also are available. The Veteran did not respond to a March 2014 letter, sent per the Board's February 2014 remand, regarding more recent ones. In July 2007 and April 2014, he underwent VA medical examinations. The latter was pursuant to the remand and included review of the claims file. This was not part of the former, but the Veteran was asked about his medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). At both examinations, he also was asked about his current symptoms. An assessment finally was performed. A fully informed determination is made herein based on these actions. The examinations, in sum, are adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). No inadequacy has been alleged by the Veteran or his representative. In conclusion, the Board finds that VA's duties to notify and to assist have been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio, 16 Vet. App. at 183. There additionally has been at least substantial compliance with the Board's remand, as required. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998). Adjudication, in sum, may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Of import is that all of these findings were made by the Board in its November 2015 decision. This decision was not vacated in part by the Court as a result of any of these findings. The issue(s) on appeal finally must be explained, and the submission of outstanding pertinent evidence must be suggested at a hearing. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the November 2013 hearing, the undersigned identified a higher rating for the Veteran's service-connected chondromalacia of the right knee as the sole issue on appeal. He then was asked questions by his representative about his symptoms, their severity, and their effects on his activities of daily living and employment. The undersigned thereafter explained that such is the crux of a higher rating claim. In addition, the Veteran related in response to his representative's questions that he receives private treatment. The undersigned did not suggest submission of any records thereof, but it is reiterated that the Board's subsequent remand sought them and that doing so ultimately was unsuccessful. II. The Merits Several rules govern the Board in making determinations on the merits. Only the most salient evidence must be discussed even though all the evidence must be and thus has been reviewed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Persuasive or unpersuasive evidence must be identified, however, and reasons must be provided for rejecting favorable evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay or non-medical evidence may be discounted in light of its inherent characteristics and relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. A. Separate Rating on the Basis of Instability Ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. A rating is assigned under the Rating Schedule by comparing the extent to which a claimant's disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the rating criteria for the disability. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). For an equitable and just rating, the disability's history and all other relevant evidence must be taken into account. 38 C.F.R. §§ 4.1, 4.6. Examinations must be interpreted and if necessary reconciled to form a consistent disability picture. 38 C.F.R. § 4.2. If two ratings are potentially applicable, the higher rating is assigned if the disability more nearly approximates the criteria required for it. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Different ratings may be assigned for different periods of time for the same disability, a practice known as staging the rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994). If a disability has increased in severity, consideration must be given to when the increase occurred. The period in question for a higher rating, as opposed to an initial higher rating, begins one year prior to the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). A musculoskeletal disability involves the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss in the form of limitation of motion may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion, or weakness. 38 C.F.R. §§ 4.40, 4.59. It also may be due to excess fatigability or incoordination. 38 C.F.R. § 4.45. A higher rating for functional impairment, to include during flare ups, due to those factors accordingly may be assigned under Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 38 C.F.R. § 4.71a addresses musculoskeletal disabilities. The Veteran's service-connected chondromalacia of the right knee is rated pursuant to Diagnostic Code 5099-5014 thereunder. In its November 2015 decision, the Board explained that Diagnostic Code 5014, which concerns osteomalacia, calls for rating on the basis of limitation of motion as degenerative arthritis under Diagnostic Code 5003. The Board further explained that this Diagnostic Code in turn requires consideration of Diagnostic Codes 5260 and 5261 for limitation of flexion of the leg and limitation of extension of the leg respectively. Upon consideration of the evidence in these regards, the Board found that a rating higher than the assigned 10 percent was not warranted. The Board's decision was not vacated in part by the Court due to this finding. It therefore stands. Also in its November 2015 decision, the Board found that consideration of Diagnostic Codes 5256 for ankylosis of the knee, 5258 for dislocated semilunar cartilage, 5259 for removal of semilunar cartilage, and 5263 for genu recurvatum was inappropriate. The rationale was that the Veteran's right knee does not include the required pathology. The Board also found that no separate rating was warranted under Diagnostic Codes 7801-7805. The Board's decision was not vacated in part by the Court in light of the aforementioned findings. They therefore stand. While Diagnostic Code 5262, which concerns impairment of the tibia and fibula, was not mentioned in the Board's decision, the same rationale as above applies to it. Specifically, the Veteran does not have the required pathology of malunion or nonunion of these bones. A finding of no such impairment indeed was made at the April 2014 VA medical examination. That leaves only Diagnostic Code 5257. Its subject is other impairment of the knee, in particular recurrent subluxation or lateral instability. As noted in the Board's November 2015 decision, separate ratings can be awarded for arthritis or limitation of motion and for instability. VAOPGCPREC 09-98 (August 14, 1998), 63 Fed. Reg. 56,704 (1998); VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994); Licthenfels v. Derwinski, 1 Vet. App. 484 (1991). The Veteran may keep his rating under Diagnostic Code 5099-5014 (with corresponding consideration of Diagnostic Codes 5003, 5260, and 5261) and be awarded a separate rating under Diagnostic Code 5257, in other words. Yet pyramiding, rating the same symptom of a disability under different Diagnostic Codes, is prohibited. 38 C.F.R. § 4.14. Symptoms thus cannot overlap but must be separate and distinct. Esteban, 6 Vet. App. at 259. Diagnostic Code 5257 provides for a 10 percent rating for slight impairment. Moderate impairment merits a 20 percent rating. The maximum rating of 30 percent is reserved for severe impairment. Slight, moderate, and severe are not defined in this specific Diagnostic Code or in the overall Rating Schedule. However, slight is generally defined as "small in kind or amount." Merriam-Webster 's Collegiate Dictionary, 1173 (11th ed. 2003). Moderate is defined as "tending toward the mean or average amount." Id. at 798. Severe is generally defined as "of a great degree." Id. at 1140. In its November 2015 decision, the Board found that a separate rating under Diagnostic Code 5257 was not warranted. The part of the decision making that finding was vacated by the Court. In particular, the Board's reasons and bases supporting aforementioned finding were deemed inadequate in the JMPR. It was noted that the Board found the medical evidence showing no instability more persuasive than the subjective evidence of instability. Yet the content of this subjective evidence, which all comes from the Veteran, was not identified. His credibility further was not analyzed. On remand, the Board was directed to issue a timely, well-supported decision. Compliance with the Court, to include the terms of a JMPR, is mandatory. Forcier v. Nicholson, 19 Vet. App. 414 (2006). The Board therefore shall attempt to remedy the two aforementioned deficiencies at this time. For starters, the subjective evidence shall be set forth followed by the medical evidence. An April 2007 private treatment record reflects the Veteran's report of worsening right knee popping and snapping. At the July 2007 VA medical examination performed by QTC, he complained of this knee giving way and locking when pressured to walk far. He testified about locking and stiffness in it after sitting for long periods at the November 2013 hearing. He further testified that it then gives out when he stands up. The example he gave was sitting in his car at work and then getting out of it. The Veteran finally testified at the hearing that he does not wear a knee brace. At the April 2014 VA medical examination, he did not complain of symptoms suggestive of subluxation or instability. The JMPR notes that he did, but it is erroneous. The symptoms it highlights indeed were found by the examiner instead of reported by the Veteran. As such, they will be set forth below. With no indication that the Veteran has any medical background, he is a lay person. His lay reports, complaints, and testimony concerning his symptoms are competent because these symptoms are personally experienced by him. Layno v. Brown, 6 Vet. App. 465 (1994). The credibility of competent lay evidence is assessed by factors such as interest, bias, inconsistency, implausibility, bad character, malingering, witness demeanor, and a desire for monetary gain. Pond v. West, 12 Vet. App. 341 (1999); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). The Veteran is interested since a higher rating equates to potential monetary gain for him. It certainly is plausible that he experiences popping, snapping, locking, stiffness, and giving way with respect to his right knee. Next, there is no indication of any bad character or malingering on the Veteran's part. He did not, for example, relate that he has every knee symptom imaginable. He instead reported a few but denied many others. There, in sum, is no indication of any exaggeration. The Veteran's demeanor at the hearing also conveyed his honesty. Finally, no inconsistency is found. The Veteran related pertinent symptoms in April and July 2007 as well as several years later in November 2013. At no point did he deny them. While the July 2007 VA medical examination found no crepitus, the earlier April 2007 private treatment record included a finding of crepitus. The April 2014 examination similarly included findings of a clicking/popping sound upon extension of the knee, intermittent locking with a popping sensation, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. Most of the medical evidence concerning symptoms therefore are consistent with the Veteran's lay reports, complaints, and testimony. The aforementioned factors collectively, in sum, show that the Veteran's lay reports, complaints, and testimony are credible as well as competent. He competently and credibly has reported pertinent symptoms, in other words. Notwithstanding these reports, the medical evidence does not actually show any instability or subluxation. Subluxation is an incomplete or partial dislocation. Rykhus v. Brown, 6 Vet. App. 354 (1994); Antonian v. Brown, 4 Vet. App. 179 (1993). Neither it nor dislocation was mentioned in the April 2007 private treatment record. The Veteran's knee was fully stable. At the July 2007 VA medical examination, there was no subluxation. Stability testing was within normal limits. At the April 2014 examination, there was no subluxation or dislocation. Stability testing once again was normal. In conclusion, all of the lay and medical evidence is in agreement that the Veteran's right knee does not manifest subluxation. Yet the lay and medical evidence pertinent to instability symptoms in this knee is in conflict with the medical evidence that it actually is not unstable. Diagnostic Code 5257 importantly does not require medical evidence of actual instability. The evidence for a separate rating thereunder accordingly is in approximate balance with the evidence against a separate rating thereunder. As such, the benefit of the doubt in this regard is to be afforded to the Veteran. The Board thus finds that he warrants a separate rating. The Board further finds that only a separate 10 percent rating can be assigned, however, given the lack of medical evidence of actual instability. These findings apply to the entire period on appeal, so a staged separate rating is not assigned. B. Higher Rating on an Extraschedular Basis As an alternative to assigning a rating under the Rating Schedule, one may be assigned on an extraschedular basis. 38 C.F.R. § 3.321(b); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). First, the disability picture must be determined to be so unusual or exceptional that the schedular rating criteria are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). This includes considering the symptoms each such disability individually. It also includes considering any symptoms resulting from the combined effects of multiple such disabilities, if raised by the Veteran, his representative, or the evidence. Yancy v. McDonald, 27 Vet. App. 484 (2016); Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). It second must be determined whether there are related factors such as marked interference with employment or frequent periods of hospitalization. Thun, 22 Vet. App. at 111. Referral finally must be made for extraschedular rating consideration. Id. The Board found in its November 2015 decision that a referral for extraschedular consideration was not warranted for the Veteran's service-connected chondromalacia of the right knee. The Court vacated the part of the decision making that finding. In particular, the Board's reasons and bases supporting it were deemed inadequate in the JMPR. It was noted that the Board summarily concluded that the applicable rating criteria reasonably describe the Veteran's disability when they only take into account his limitation of flexion and limitation of extension. No explanation was provided as to how they take into account his popping, clicking, snapping, locking, stiffness, giving way, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. On remand, the Board was directed to issue a timely, well-supported decision. It is reiterated that compliance with the Court, to include the terms of a JMPR, is mandatory. Forcier, 19 Vet. App. at 414. The Board therefore shall attempt to remedy the aforementioned deficiency at this time. Once again, the Board finds that the Veteran's service-connected chondromalacia of the right knee is not unusual or exceptional. The symptoms attributable to it indeed are reasonably contemplated by the schedular rating criteria set forth above. The original rating assigned based on them took into account the Veteran's limitation of motion in terms of flexion and extension. This includes factoring in a wide variety of ways in which functional impairment may be manifested, such as due to pain, fatigability, weakness, lack of endurance, or incoordination. It also includes consideration of repeated use and flare-ups. The separate rating assigned herein further takes into account the Veteran's popping and other symptoms listed in the previous paragraph. In other words, the deficiency highlighted in the JMPR is essentially moot in light of the newly assigned separate rating. To the extent any of the Veteran's symptoms still are not accounted for by the rating criteria, this does not automatically render them inadequate. The Veteran testified at the hearing that he has problems going up and down stairs, for example, when is not set forth in these criteria. Yet this problem is addressed by them in that it conveys decreased functional impairment in the form of limitation of motion. The same is true of his complaint at the July 2007 VA medical examination of not being able to walk long distances. So functional impairment further is typical, not unusual or exceptional, of an individual with a knee disability. Finally, there are no combined effects of multiple service-connected disabilities since the Veteran is not service-connected for any disability other than chondromalacia of the right knee. Referral for consideration of the assignment of an extraschedular rating, in conclusion, is not warranted because the applicable schedular rating criteria are adequate. Even if they were inadequate, referral still would not be warranted because there are no related factors. The Veteran never, much less frequently, has been hospitalized due to his right knee. While he has had surgery, it was long before the period on appeal during his active duty service. There also is no marked interference with employment beyond that already contemplated by the assigned schedular ratings. The Veteran testified at the hearing that he works full-time as a state trooper. He also testified that no concessions have been made to accommodate his right knee disability. Indeed, he has never missed a day of work because of this knee even though he has left work early for this reason on a few occasions. The only impact on his ability to work per the April 2014 VA medical examination is pain with weight-bearing and range of motion activities. (CONTINUED ON NEXT PAGE) ORDER A separate rating of 10 percent is granted for service-connected chondromalacia of the right knee on the basis of instability. Referral for consideration of the assignment of an extraschedular rating for service-connected chondromalacia of the right knee is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs