Citation Nr: 1751036 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 14-00 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for the period prior to November 18, 2015, and in excess of 20 percent thereafter, for left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy. 2. Entitlement to an initial compensable rating for left knee scars. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1992 to May 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In the September 2017 Appellant's Brief, the Veteran's representative indicated that the Veteran was entitled to an earlier effective date for his left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy. However, it is unclear as to whether the Veteran is seeking an earlier effective date for the grant of service connection for the disability, or for the assignment of the increased evaluation of 20 percent which occurred in the November 2015 rating decision. This matter is referred to the Agency of Original Jurisdiction (AOJ) for clarification and additional development, if warranted. FINDINGS OF FACT 1. For the period prior to November 18, 2015, the Veteran's left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy, was characterized by flexion to 115 degrees, extension to 10 degrees, swelling and pain. 2. For the period starting November 18, 2015, the Veteran's left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy, is characterized by flexion to 110 degrees, extension to 0 degrees, pain around the patella, history of recurrent effusion, frequent episodes of "locking" and pain. 3. The Veteran's left knee scars do not have a total area equal to or greater than six square inches and are not painful or unstable. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for the period prior to November 18, 2015 for left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.71a, Diagnostic Codes 5003-5260 (2017). 2. The criteria for a rating in excess of 20 percent for the period starting November 18, 2015 for left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5258 (2017). 3. The criteria for an initial compensable rating for left knee scars have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.118, Diagnostic Code 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Ratings Generally Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, 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. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pyramiding under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App 119 (1999). In this case, staged ratings for one of the disabilities on appeal have already been assigned. The Board will accordingly discuss the propriety of the ratings assigned at each stage. Left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy For the period prior to November 18, 2015, the Veteran's service-connected left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy, has been rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260-5003. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. In this case, DC 5260-5003 reflects consideration of the effects of degenerative arthritis (5003) and limited flexion (5260). Under DC 5003, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion. Under DC 5260, a noncompensable rating is warranted for knee flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and, a 30 percent rating is warranted for flexion limited to 15 degrees. The Veteran contends that he is entitled to a rating in excess of 10 percent for his left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy, because the current assigned 10 percent rating does not adequate represent the severity of his condition for the period prior to November 18, 2015. The Veteran underwent a VA examination in April 2012. April 2012 VA Examination, p. 89. He reported swelling and some pain aggravated by weather. Upon examination, his left knee flexion was to 130 degrees with objective evidence of painful motion and his left knee extension was to 0 degrees with no objective evidence of painful motion. There was no tenderness or pain to palpation noted by the examiner. The examiner did not observe any joint instability or patellar subluxation or dislocation. The Veteran reported frequent episodes of joint pain but no "locking" and no joint effusion. The Veteran provided private treatment records in support of his claim. In a June 2013 treatment note, the physician noted swelling, discomfort, and slight tenderness both medially and laterally of the left knee. September 2015 Private Treatment Records, p. 15. On range of motion, the Veteran's flexion was to 115 degrees and the extension was to 10 degrees. The Veteran's ligaments were all stable and there was no patellofemoral crepitus. The physician noted moderate sized joint effusion. Id. at p. 28. The Veteran reported to a VA medical center in April 2014 with left knee swelling, pain and limited mobility. November 2015 CAPRI, p. 23. The Veteran reported the knee pain following an injury and described it as persistent when he moved. He denied redness and there was no deformity to the knee. There was no fibular tenderness, no foot drop, no knee, no erythema, no patellar tenderness and the knee was able to bear weight. In a June 2014 VA treatment note, the Veteran reported episodic left knee pain and swelling which was worsened by activities. November 2015 CAPRI, p. 20. The physician noted that no crepitance was palpable. The Veteran's range of motion was to 135 degrees, and there was no effusion and no laxity observed. For the period prior to November 18, 2015, the Board finds that the weight of the evidence preponderates against a finding of entitlement to a rating in excess of 10 percent for left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy. In order to receive a higher evaluation, the left knee flexion must be limited to 30 degrees. The Veteran's left knee flexion has not been limited to 30 degrees at any point prior to November 18, 2015. As there is no reasonable doubt to be resolved, the Board concludes that the weight of the evidence preponderates against a finding of entitlement to a rating in excess of 10 percent for left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy, for the period prior to November 18, 2015. The Board has considered whether the Veteran would be entitled to a higher rating under a different diagnostic code for his left knee disability. To receive a higher rating, the evidence must demonstrate a finding of left knee ankylosis; recurrent subluxation or lateral instability; cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint; limitation of extension to 15 degrees; or, impairment of the tibia and fibula. The Board finds that the objective medical evidence does not demonstrate any of the aforementioned characteristics in the Veteran's left knee at any time prior to November 18, 2015. For the period starting November 18, 2015, the Veteran's service-connected left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy, has been rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5003-5258. The criteria for DC 5258 include cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. The only rating available under DC 5258 is 20 percent. The Veteran underwent a VA examination in November 2015. The Veteran reported left knee pain that is constant, aching, and moderate. He reported experiencing flare-ups twice per week which caused him to limp sometimes and were generally accompanied by swelling. The Veteran stated that his left knee pain was worse with bending, prolonged standing/walking, stairs, sloping hills, and cold weather. The Veteran reported that his knee locks for short times every few days. On range of motion testing, the Veteran's left knee flexion was to 110 degrees and extension was to 0 degrees. The Veteran was unable to fully flex the knee without pain. There was pain around the patella on all aspects with palpation and objective evidence of crepitus. There was no recurrent subluxation, no history of lateral instability, and no joint instability. The Veteran reported a history of recurrent effusion and indicated that he has had to have fluid drawn off his knee 25 to 30 times. For the period starting November 18, 2015, the Board finds that the weight of the evidence preponderates against a finding of entitlement to a rating in excess of 20 percent for left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy. There is no higher evaluation available under DC 5258. Accordingly, in order to receive a higher evaluation, the Veteran's left knee condition would need to be evaluated under a different diagnostic code. The objective medical evidence does not demonstrate a finding of ankylosis; severe recurrent subluxation or lateral instability; limitation of flexion to 15 degrees; limitation of extension to 20 degrees; or, impairment of the tibia and fibula at any time after November 18, 2015. The Board acknowledges the Veteran's reports of increased pain during flare-ups and additional functional limitations during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. However, neither the medical nor lay evidence suggests that this limitation approximates 15 degrees of flexion or 20 degrees of extension. Consequently, the Veteran's left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy, is most appropriately rated at 20 percent under DC 5258 . Additionally, as will be discussed below in further detail, the record does not present such an exceptional or unusual disability picture as to warrant the assignment of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321. In this regard, the Board notes that there has been no demonstration that the Veteran's left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy, is characterized by symptomatology not contemplated by the schedular criteria. Moreover, the Veteran's left knee disability picture is not productive of marked interference with employment beyond that contemplated in the current assigned ratings, nor productive of frequent hospitalization. The diagnostic criteria adequately contemplate the Veteran's symptomatology. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In sum, the Schedule for Rating Disabilities is shown to provide a fair and adequate basis for rendering a decision in this case. Consequently, referral for a higher rating on an extraschedular basis is not warranted. Left Knee Scars The Veteran's left knee scars have been rated under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7805. DC 7805 calls for evaluation of scars under Diagnostic Codes 7800, 7801, 7802, or 7804. During the Veteran's April 2012 VA examination, the examiner noted the Veteran's left knee scars. The Veteran denied having problems with the scar and the examiner noted that they were not painful and not unstable. The examiner noted three scars on the Veteran's left knee and each scar measured less than 1 centimeter by .3 centimeter. The scars were mildly hyperpigmented and superficial. They were not painful on examination, there was no underlying soft tissue damage and the scars did not break down. There was no limitation of function caused by scar, no inflammation, no edema, no keloid formation, no adherence to underlying tissue, no elevation or depression of the scar, and no disfigurement. The Veteran's left knee scars were examined during the November 2015 VA examination. The scars were not painful or unstable and they did not have a total area equal to or greater than 6 square inches. All scars were skin-colored, superficial and not tender with deep or light palpation. The texture was not elevated, depressed, irregular, atrophic, shiny, scaly, hypopigmented, unstable or ulcerated. There was no evidence of inflammation, edema, keloid formation, inflexibility, adherence to underlying tissue, gross distortion or asymmetry. The Board finds that the weight of the evidence preponderates against a finding of entitlement to a compensable rating for left knee scars. In order to receive a minimum compensable rating, the scars must contain at least one characteristic of disfigurement: scar of 5 or more inches; scar at least .6 centimeter wide; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; hypo- or hyperpigmentation in an area exceeding 6 square inches; abnormal skin texture in an area exceeding 6 square inches; missing underlying tissue in an area exceeding 6 square inches; or, indurated or inflexible skin in an area exceeding 6 square inches. Alternatively, a compensable rating is appropriate when scars cover an area of at least six square inches, or the scars are painful or unstable. The Veteran has not contended that his scars are painful and none of the competent medical evidence demonstrates that the scars are unstable or possess any of the stated characteristics of disfigurement. Moreover, the total area covered by the Veteran's scars is less than 6 square inches and there are no functional limitations related to the scars. Thus, the Board concludes that a compensable rating for left knee scars is not warranted. Extraschedular Consideration The Veteran's representative raised the issue of extraschedular consideration in the September 2017 Appellant's Brief, and the Board has considered whether the Veteran's disabilities should be referred pursuant to 38 C.F.R. § 3.321(b)(1). Determining whether to refer a matter for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates a claimant's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found to be inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptomatology associated with the Veteran's disabilities is fully contemplated by the applicable rating criteria. The symptomatology reported by the Veteran and shown on examination is contemplated by the rating criteria used to assign disability evaluations, and there is no characteristic or manifestations shown that are outside the purview of the applicable rating criteria, or that are so exceptional as to render the criteria inapplicable. Rather, the criteria provide examples for particular ratings and the Board may consider all factors in assigning a scheduler rating. The Veteran has 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). Therefore, referral for consideration of an extraschedular rating for left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy, and left knee scars is not warranted. See 38 C.F.R. § 3.321(b)(1). ORDER For the period prior to November 18, 2015, a rating in excess of 10 percent for left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy, is denied. For the period effective November 18, 2015, a rating in excess of 20 percent for left patellofemoral chondromalacia with synovitis, status post-chondroplasty with synovectomy, is denied. An initial compensable rating for left knee scars is denied. ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs