Citation Nr: 1753058 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-29 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right knee disability. 2. Entitlement to a rating in excess of 10 percent for left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1989 to January 1999 and from February 2003 to September 2004, and had additional service in the National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). A February 2008 rating decision reconsidered an April 2007 rating decision and granted service connection for a left knee disability, rated 0 percent and denied an increased rating for a right knee disability. A June 2010 rating decision increased the rating for the left knee disability to 10 percent, effective July 2006. In April 2015, a Travel Board hearing was held before the undersigned; a transcript is in the record. In July 2015 and October 2016, the Board remanded these matters for additional development. The Board's October 2016 decision also denied service connection for a right hip disability and denied increased ratings for lumbar strain and right ankle sprain, resolving those matters. FINDINGS OF FACT 1. The Veteran's right knee disability is manifested by extension limited at no more than 5 degrees, and flexion to at least 110 degrees; subluxation and/or instability are not shown. 2. The Veteran's left knee disability is manifested by full extension and flexion to at least 110 degrees; subluxation and/or instability are not shown. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for right knee disability is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes (Code) 5257, 5260, 5261 (2017). 3. A rating in excess of 10 percent for a left knee disability is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Codes 5257, 5260, 5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter dated in September 2006. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Regarding the left knee, the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, statutory notice has served its purpose, and its application is no longer necessary. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). A statement of the case (SOC) properly provided notice on the downstream issue of entitlement to an increased initial rating. The Veteran's VA medical records have been secured. He was afforded VA examinations to assess the severity of his bilateral knee disabilities. VA's duty to assist is met. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires a VLJ who conducts a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. At the April 2015 hearing, the undersigned identified the issues, and advised the Veteran of what is needed to substantiate the claims. A hearing notice deficiency is not alleged. The Board also finds that there has been substantial compliance with the October 2016 Board remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Factual Background, Legal criteria and Analysis The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). On November 2006 VA examination, the Veteran stated that he wore a knee brace. He said the right knee tends to pop and click and occasionally becomes swollen. Examination found no swelling, erythema, joint effusion or excessive warmth. Active range of motion was from 5 degrees to 110 degrees; passively, flexion was to 120 degrees without pain. There was discomfort with patellar grind and McMurray's tests. Anterior drawer sign was negative, as was Lachman's test. There was no pain or laxity with varus or valgus stress. There was no additional functional impairment due to weakness, fatigability, incoordination or flare-ups. The Veteran stated that he used a cane mostly for his right ankle disability, but said it helped with his knee pain. The diagnosis was right knee chondromalacia. It was noted that the Veteran had minimal discomfort. The examiner stated that there was no loss of range of motion or strength, and that there did not appear to be any functional limitation. On January 2008 VA joints examination, the Veteran complained of bilateral knee pain and swelling, worse with prolonged walking. Examination found that range of motion of each knee was 0 to 110 degrees, with pain. "He has increased with Lachman, anterior drawer bilateral knees" to three millimeters. McMurray's was negative. Varus and valgus were negative. There was tenderness to palpation over both lateral and medial joint lines bilaterally. The Veteran had retropatellar crepitus with motion and positive quadriceps inhibition. No other palpable defects or deformities were felt. He did not have fatigability with repetitive motion. There was no weakness. The impression was bilateral mild knee strain. The examiner noted that the Veteran exhibited no weakness or fatigability; that there was no additional limitation of motion after three repetitions; and that there was no additional functional impairment due to pain, weakness, fatigability, incoordination or flare-ups. VA outpatient treatment records show that in March 2009, the Veteran had full range of motion of each knee. There was no effusion or tenderness to palpation. The knees were stable. There was a positive grind. In November 2009 he complained of bilateral knee pain with activity. Range of motion of the right knee was from 0 to 110 degrees. There was 1+ varus/valgus. Anterior and posterior drawer signs were negative. There was pain with patellar stress and at the lateral joint line. Minimal crepitus was noted. McMurray's test was equivocal. The findings in the left knee were the same, except that there was no pain with patellar stress. The assessment was bilateral patellofemoral syndrome. On May 2013 VA knee examination, the Veteran complained of bilateral knee pain. He said he had flare-ups that impacted the function of the knees. Examination of each knee found that range of motion was from 0 to 120 degrees, with no objective evidence of pain. He was able to perform repetitive use testing with no additional limitation of motion. There was no functional loss or impairment of either knee. There was no pain or tenderness to palpation. Muscle strength testing was 5/5, bilaterally. Joint stability tests were normal in each knee. There was no evidence or history of recurrent patellar subluxation or dislocation in either knee. No meniscal condition was noted. The diagnosis was chondromalacia of each knee. It was noted that the Veteran used a brace occasionally. The examiner stated that the Veteran's bilateral knee disability did not impact his ability to work. On October 2015 VA examination, the Veteran stated that his knees were painful all the time. He said the pain was worse when he was walking on gravel at work. He denied flare-ups and did not report having any functional loss or impairment of the knees. Examination of the right knee found that range of motion was from 0 to 110 degrees. He was able to perform repetitive use testing with no additional functional loss or change in the range of motion. He had functional loss manifested by pain and stiffness. There was pain with flexion and with weight bearing. There was no objective evidence of localized tenderness or pain to palpation. There was no evidence of crepitus. Examination of the left knee found that range of motion was from 0 to 120 degrees. He was able to perform repetitive use testing with no additional functional loss or change in the range of motion. He had pain and stiffness when bending the knee. There was pain with flexion and with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint. There was no evidence of crepitus. There was no reduction in muscle strength or muscle atrophy in either knee. It was noted that he had ankylosis in the right knee in flexion between 20 and 45 degrees, and ankylosis in the left knee in flexion between 10 and 20 degrees. There was no history of recurrent subluxation, lateral instability or recurrent effusion of either knee. Joint stability tests were normal bilaterally. It was noted that the Veteran did not use an assistive device for either knee. The diagnosis was bilateral chondromalacia. The examiner stated that the Veteran's knee disabilities impacted his ability to work. He could not do heavy physical work requiring bending or climbing. The examiner opined that the disability was mild. He indicated that there was no additional increased pain, weakness, fatigability or incoordination that could significantly limit functional ability during flare-ups or when the joint was used repeatedly over a period of time. On April 2017 VA knee examination, the Veteran stated that he had pain in both knees in the morning and after work. He said the pain was worse in the left knee. Examination found that range of motion was 0 to 110 degrees bilaterally. He was able to perform repetitive use testing in each knee with no additional functional loss or limitation of motion. Pain was noted but it did not result in functional loss. There was evidence of pain with weight bearing in each knee. There was no localized tenderness or pain to palpation in either knee. There was evidence of crepitus in each knee. Disturbance of locomotion and interference with sitting and standing were noted to be additional contributing factors of disability bilaterally. There was no reduction in muscle strength, muscle atrophy or ankylosis of either knee. There was no history of recurrent subluxation, lateral instability or recurrent effusions bilaterally. Joint stability tests were normal in each knee. It was noted that he used a brace regularly. The diagnoses were bilateral knee tendonitis and bilateral patellofemoral pain syndrome. The examiner described the functional impact by noting that the Veteran should avoid walking on uneven surfaces and for prolonged periods of time. He was not to lift or carry more than 30 pounds. The examiner indicated the disability was mild, noting that there was no evidence of pain on passive range of motion testing, and no evidence of pain when the joint was used in non-weight bearing. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. General policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal is from the initial rating assigned with the award of service connection, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). This analysis is undertaken considering the possibility that different ratings may be warranted for different time periods, based on facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). A 30 percent rating is to be assigned when flexion of a knee is limited to 15 degrees, a 20 percent rating when flexion is limited to 30 degrees, and a 10 percent rating when flexion is limited to 45 degrees,. 38 C.F.R. § 4.71a, Code 5260. A 50 percent rating is to be assigned when extension of the leg is limited at 45 degrees; a 40 percent rating when extension is limited at 30 degrees; a 30 percent rating when extension is limited at 20 degrees; a 20 percent rating when extension is limited at 15 degrees; and a 10 percent rating when extension is limited at 10 degrees. 38 C.F.R. § 4.71a, Code 5261. Normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. The Veteran was afforded numerous VA examinations to assess his knee disabilities during the course of this appeal. To warrant a 20 percent rating based on limitation of motion, the evidence must show flexion limited to 30 degrees or extension limited at 15 degrees (or flexion limited to 45 degrees and extension limited at 10 degrees). Regarding the right knee, with the exception of the November 2006 VA examination at which time extension was to 5 degrees, all other VA examinations showed full extension. Flexion was to at least 110 degrees on each of the five VA examinations that assessed his right knee disability, including the most recent examination in April 2017. Regarding the left knee, the January 2008, May 2013, October 2015 and April 2017 VA examinations each found full extension (to 0 degrees) and flexion limited to no less than 110 degrees. Such findings do not support a rating in excess of 10 percent for either knee based on limitation of motion. On October 2015 VA examination it was indicated that the Veteran had ankylosis of each knee. Ankylosis is immobility or consolidation of a joint due to disease, injury, or surgical procedure. Dorland's Illustrated Medical Dictionary, at 94 (32nd ed. 2012). Since that examination, and all other examinations of record, found that the Veteran retains motion of each knee (i.e., there is no immobility) , that is an obviously erroneous entry. Notably, on subsequent, October 2015, examination the examiner specifically noted that the knees were not ankylosed. Furthermore, subluxation or instability of either knee is not shown. The Veteran has stated that his knees give out. However, on May 2013, October 2015 and April 2017 VA examinations, it was specifically reported that joint stability tests were all normal. Thus, a separate rating for such impairment is not warranted for either knee. See VAOPGCPREC 23-97 (July 1, 1997). ORDER A rating in excess of 10 percent for a right disability is denied. A rating in excess of 10 percent for a left knee disability is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs