Citation Nr: 1751547	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  07-04 185	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to a rating in excess of 10 percent for right knee retropatellar pain syndrome from May 1, 2006 to February 4, 2008.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R. Kettler, Associate Counsel


INTRODUCTION

The Veteran had active service in November 1995 to November 2001.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.  

The Veteran attended a hearing before a decision review officer at the AOJ in June 2007.  A transcript of the hearing is associated with the record.

In a June 2010 written statement, the Veteran revoked his appointment of Puerto Rico Public Advocate for Veterans Affairs (PRPAVA) as his representative.  As the Veteran has not obtained another representative, the Board recognizes the Veteran as proceeding pro se in this appeal.

This matter was previously remanded in December 2010 and July 2012 for additional development.

This appeal was processed using the Virtual VBMS paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should review this electronic record.


FINDING OF FACT

From May 1, 2006 to February 4, 2008, the Veteran's retropatellar pain syndrome of the right knee was manifested by subjective complaints of pain, with range of motion intact, and no instability or ankylosis.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent for the Veteran's retropatellar pain syndrome of the right knee have not been met from May 1, 2006 to February 4, 2008.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Veteran has not raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  Further, the Board finds that the July 2012 remand directives have been substantially completed.  Stegall v. West, 11 Vet. App. 268 (1998).

II. Legal Analysis

VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.321 (2017); see generally, 38 C.F.R. § Part IV (2016).  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 (2017).  The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1 (2017).  

Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7 (2017).  Otherwise, the lower rating will be assigned.  Id.  All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (2017); see also 38 C.F.R. § 3.102 (2017).  

Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

III. Merits of the Claim

The Veteran is in receipt of service connection for right knee retropatellar pain syndrome evaluated as 10 percent disabling under Diagnostic Codes 5299-5010.

As there is no diagnostic code specifically applicable to retropatella pain syndrome, these disabilities are rated by analogy under Diagnostic Code 5010, applicable to traumatic arthritis, which in turn in evaluated as degenerative arthritis, based on limitation of motion of the specific joint involved.  38 C.F.R. § 4.20.  Degenerative arthritis established by radiographic imaging/x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved.  Limitation of motion must be objectively confirmed by clinical findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Where there is x-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the diagnostic code, a 10 percent rating is for assignment for each major joint affected.  Id.  VA regulation defines the knee as a major joint.  38 C.F.R. § 4.45(f) (2017).

Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same knee.  Under Diagnostic Code 5260, a noncompensable rating is assigned for limitation of flexion to 60 degrees, a 10 percent rating is assigned for flexion limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, and a 30 percent rating is assigned for flexion limited to 15 degrees.  Pursuant to Diagnostic Code 5261, a noncompensable rating is assigned for limitation of extension to 5 degrees, a 10 percent rating will be assigned for extension of the knee limited to 10 degrees, a 20 percent rating is assigned for extension limited to 15 degrees, a 30 percent rating for limitation to 20 degrees, and a 40 percent rating for limitation to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2017) 

Ratings are also available pursuant to Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 when there is evidence of knee ankylosis, dislocated semilunar cartilage with locking episodes and effusion into the joint, symptomatic removed cartilage, tibia and fibula impairment, and genu recurvatum, respectively.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263.

Turning to the minimal available evidence of record, in a June 2006 San Juan VA Medical Center treatment note, the Veteran reported increased pain post-surgery.  Physical examination revealed no edema, swelling, or instability.  

In a November 2006 treatment note, the Veteran presented to the San Juan VAMC with complaints of right knee pain.  Physical examination found no edema, cyanosis, crepitation, and range of movement intact.

In June 2007, the Veteran received a hearing before a decision review officer at the AOJ.  The Veteran testified that he experienced pain on a constant basis in his right knee.  The Veteran noted it was around 8 out of 10 on a pain scale.  He stated he used an unprecribed brace with ice packs to alleviate the pain, particularly while working.

On review of all evidence, both lay and medical, the Board finds that a rating in excess of 10 percent for right knee retropatellar pain syndrome is not warranted between May 1, 2006 to February 4, 2008.

The Board has considered whether a higher rating could be assigned under Diagnostic Code 5299-5010.  In this regard, however, available evidence only demonstrates x-ray evidence of one major joint and does not reflect any incapacitating episodes.  38 C.F.R. § 4.45(f) (explaining the knee is a major joint).  As such, a higher 20 percent evaluation is not warranted under Diagnostic Codes 5010 and 5003.

Turning to range of motion, VA treatment records show no abnormal range of motion testing for the knee between May 1, 2006 to February 4, 2008.  See, e.g., November 2006 San Juan VAMC treatment note.  Therefore, a compensable rating under Diagnostic Code 5260 (leg limitation of flexion) or Diagnostic Code 5261 (leg limitation of extension) is not warranted for the right knee.

Furthermore, at no time during the appeal period, has the evidence of record indicated ankylosis, dislocated cartilage with frequent episodes of locking, pain, and effusion, symptomatic removal of cartilage, impairment of the tibia and fibula, or genu recurvatum of the Veteran's right knee, or at least that would not be considered pyramiding.  See 38 C.F.R. § 4.14 (2017).  See also VBA Manual M21-1, III.iv.4.A.3.h.i. (2016) (the meniscus Diagnostic Codes contemplates limitation of motion and instability).  As such, a rating on the basis of Diagnostic Codes 5256, 5258, 5259, 5262, or 5263, respectively, is not warranted.  

The Board has considered whether a higher disability rating for the right knee is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59.  See also DeLuca.  Here, there is no question that the right knee disability has caused pain.  The Veteran has consistently, in statements made for the purpose of treatment and at the June 2007 hearing, reported chronic knee pain; however, as noted above, even taking into account additional functional limitation due to pain, the VA treatment records do not indicate decreased range of motion, instability, edema, or crepitation.

Consideration has been given to the Veteran's lay assertions.  Specifically, as noted above, the Veteran reports that he has chronic pain.  See June 2007 hearing transcript.  While the Veteran is competent to report subjective symptoms such as pain, because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of knee disability according to the appropriate diagnostic codes.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

As the preponderance of the evidence is against the claims for increased ratings for knee disabilities, the benefit-of-the-doubt doctrine does not apply, and the claims must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Entitlement to a rating in excess of 10 percent for a right knee knee retropatellar pain syndrome between May 1, 2006 to February 4, 2008 is denied.




____________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs