Citation Nr: 1756601 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-41 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a right knee disability. 2. Entitlement to a rating in excess of 10 percent for a left knee disability. REPRESENTATION Appellant represented by: Christine A. Coronado, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from March 1991 to January 1996. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran provided testimony at a November 2013 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that an appeal has been perfected concerning the issues of entitlement to service connection for bronchitis, hypertension, and a left anterior temporal mass, and entitlement to increased ratings for neurofibromatosis, and insomnia/anxiety. A hearing is being scheduled at the RO concerning those issues. FINDINGS OF FACT 1. Throughout the pendency of this claim, the Veteran's right knee disability has been manifested by flexion limited, at worst, to 120 degrees and extension to 0 degrees; it has not been manifested by flexion limited to 30 degrees or less, extension limited to 15 degrees or less, ankylosis, objective evidence of recurrent subluxation or lateral instability, impairment of the tibia and fibula, or genu recurvatum. 2. Throughout the pendency of this claim, the Veteran's left knee disability has been manifested by flexion limited, at worst, to 120 degrees and extension to 0 degrees; it has not been manifested by flexion limited to 30 degrees or less, extension limited to 15 degrees or less, ankylosis, objective evidence of recurrent subluxation or lateral instability, dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for a right knee disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5014, 5256-63 (2017). 2. The criteria for a rating greater than 10 percent for a left knee disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5014, 5256-63 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked evidence that is not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C. §§ 5103, 5103A (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, to include (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For initial rating claims or claims for an earlier effective date, where service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby making 38 U.S.C. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating or the effective date of the disability does not trigger additional 38 U.S.C. § 5103(a) notice requirements. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA medical records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). When VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was provided with a VA examination in March 2012. The examiner reviewed the claims file and past medical history, and made appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board concludes that the VA examination report is adequate for the purpose of making a decision. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board recognizes that, generally, the mere passage of time is not a sufficient basis for scheduling another examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Veteran's VA treatment records have been associated with the claims file, and the post-VA examination treatment records contain range of motion findings and describe the Veteran's knee symptomatology. The medical evidence of record is adequate for adjudicating the claims. The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. Increased Ratings An October 2012 RO rating decision established service connection for bilateral patellofemoral pain syndrome. A 10 percent disability rating was awarded for each knee, effective May 5, 2009. The Veteran disagreed with the initial ratings assigned. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (2014); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating criteria for limitation of motion of the knee are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a (2017). Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II (2017). Under Diagnostic Code 5260, limitation of flexion of the knee is rated 10 percent disability rating for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). Under Diagnostic Code 5261, limitation of extension of the knee is rated 10 percent for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). Diagnostic Code 5257 provides that a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of a knee. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe knee impairment with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). Subluxation of the patella is the incomplete or partial dislocation of the knee cap. Rykhus v. Brown, 6 Vet. App. 354 (1993). The words slight, moderate, and severe as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2017). In addition, separate ratings may be assigned for compensable limitation of both flexion and extension, or for limitation of motion and instability or subluxation of the knee, or meniscal pathology. However, a separate rating can only be assigned where additional compensable symptomatology is shown that is not duplicative of that used to assign another rating. 38 C.F.R. § 4.14 (2017); VAOPGCPREC 09-04 (2004), 69 Fed. Reg. 59990 (2004);VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56704 (1998); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a (2017). When, however, limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is generally for application. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A rating for arthritis cannot be combined with a rating based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). In April and July 2010, the Veteran was treated at a VA medical facility for knee pain. A May 2011 VA treatment record contains the Veteran's report of bilateral knee pain. He stated that his pain rated an 8 on a 1 (low) to 10 (high) pain scale. He reported popping and grinding in his knees. On VA examination in March 2012, the Veteran reported bilateral knee pain that he rated as an 8 on a 1 (low) to 10 (high) pain scale. The Veteran denied experiencing instability and locking. He had grinding pain in the kneecaps. He experienced flare-ups with bending and sudden movements. Right knee flexion was to 140 degrees or greater. Right knee extension was to 0 degrees. Left knee flexion was to 140 degrees or greater. Left knee extension was to 0 degrees. There was no objective evidence of pain on any of the ranges of motion. Repetitive use testing did not result in any further limitation of motion. The examiner opined that the Veteran did not have any functional loss or functional impairment of either knee. There was tenderness to palpation of the soft tissues of both knees. Anterior, posterior, and medial-lateral instability testing yielded normal results for both knees. There was no evidence of history of recurrent patellar subluxation or dislocation for either knee. X-rays were taken and did not show evidence of patellar subluxation. The examiner opined that the Veteran would experience pain with running. In March 2013, a VA orthopedist found that the Veteran's left knee had a range of motion from 0 to 120 degrees. The right knee had a range of motion from 0 to 130 degrees. Discomfort was present with both knees. No locking was found. There was no laxity of either knee to varus or valgus stress. A physical therapy record from May 2013 shows that the Veteran had no limitations in his activities of daily living. The note indicates that the Veteran denied a history of locking or of the knees giving way. The examiner found that the Veteran's gait was stable. The range of motion of both knees was from 0 to 120 degrees bilaterally. At a November 2013 Board hearing, the Veteran described experiencing a constant pain and grinding in the knees. He described the pain as like a dull toothache. When he knelt, he had to use a table or other support to help pull him back to a standing position. The Veteran stated that his knees twisted, and he could lose his balance. He wore knee braces. He could not walk for long distances. He had tried using ice and heat packs, and neither alleviated his pain. He had difficulty walking up stairs. In May 2014, a VA examiner noted that the Veteran did not have a history of locking of the knees. The range of motion of both knees was from 0 to 120 degrees with bilateral knee discomfort. There was no joint laxity to varus or valgus stress. A VA treatment record from June 2014 shows that the Veteran walked with an antalgic gait. The examiner found no ligamental laxity with valgus/varus stress. Active and passive range of motion of both knees was from 0 to 120 degrees without difficulty. The examiner observed mild patellofemoral crepitus and grinding with flexion and extension. The Veteran received pain injections in his knees in June 2014. An MRI of the right knee taken in September 2014 found chondromalacia of the patellofemoral compartment, a small joint effusion, and a small Baker's cyst. An MRI of the left knee showed chondromalacia of the patellofemoral joint, a small joint effusion, and a small leaking Baker's cyst. A February 2016 letter from the Veteran's employer shows that the Veteran's knee and shoulder limitations caused his reassignment from an automobile service technician to a customer service representative. A May 2016 VA treatment record shows that the Veteran was prescribed long-term opioids for knee and shoulder pain. The Board finds that the preponderance of the evidence is against the assignment of any higher disability rating under Diagnostic Code 5260 for limitation of flexion of either knee at any time during the course of the appeal. Concerning the right knee, the evidence shows that flexion of the right knee was limited, at worst, to 120 degrees, with consideration of pain. Concerning the left knee, the evidence shows that flexion of the right knee was limited, at worst, to 120 degrees, with consideration of pain. The flexion measurements are consistent with no more than a 0 percent rating for either knee under Diagnostic Code 5260. The Board also finds that the weight of the evidence is against assigning a higher rating throughout the period of appeal under Diagnostic Code 5261 for limitation of extension. The evidence shows that extension of both knees was limited, at worst, to 0 degrees, with consideration of pain. Those findings do not meet the criteria for a compensable rating under Diagnostic Code 5261, or for any higher rating. However, the Veteran has repeatedly reported that he experiences pain in both knees. He has reported pain to each medical examiner, and he has additionally discussed his pain in repeated submissions to the RO and at the Board hearing. Because of the Veteran's painful, yet noncompensable, limitation of right and left knee motion, and other symptoms, the presently assigned disability ratings of 10 percent each based on painful motion for the right and left knees are warranted. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40, 4.45, 4.59 (2017) (intent of the rating schedule to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). However, the Board finds that the preponderance of the evidence is against the assignment of any higher or additional separate rating for limitation of motion of either knee. The ratings assigned have considered additional functional loss due to pain and other factors. Turning to instability, the Board concludes that a compensable rating under Diagnostic Code 5257 is not warranted at any time throughout the period of appeal for either knee. Objective observations of instability have not been noted in the VA or private treatment records. Significantly, all of the VA examiners and treatment providers indicate that the Veteran's right and left knees were stable on objective observation. To whatever extent the Veteran may assert that his right and left knees are unstable, the Board finds that the objective medical evidence outweighs the subjective complaints, as the medical evidence was created by trained health care providers objectively performing their professional duties. The Board finds that those objective medical findings are more persuasive because of the training and experience of the medical professionals. In light of those medical records, the Board finds that a separate disability rating is not warranted at any time during the period of appeal for instability of either knee, pursuant to Diagnostic Code 5257. In addition, subluxation of either knee is not shown. None of the treatment records, to include X-ray and MRI findings, show dislocated or removed semilunar cartilage of either knee. Thus, Diagnostic Codes 5258 and 5259 cannot serve as a basis for an increased rating for either knee. Finally, in considering the applicability of other diagnostic codes, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum) are not applicable, as the medical evidence does not show that the Veteran has any of those conditions. The Board notes that the Veteran's functional loss was considered as the medical evidence shows that the Veteran has consistently complained of pain in both knees. 38 C.F.R. §§ 4.40, 4.45 (2017). However, the limitation of motion and functional loss documented in the medical records as resulting from pain, including flare-ups, is contemplated in the disability ratings now currently assigned. Moreover, although the Veteran had pain on repetitive motion, that pain did not result in limitation of flexion or extension to the level that any separate or higher rating would be warranted. There is otherwise no evidence of additional significant impairment of motor skills, muscle function, or strength attributable to the Veteran's knee disabilities, beyond what is already being compensated. Consequently, the Board finds that a higher disability rating based on functional loss is not warranted for the right or left knee, in excess of what was discussed above. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of any higher or separate rating for a right or left knee disability and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Other Considerations Ordinarily, VA's Rating Schedule will apply unless there are exceptional or unusual factors which would make application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). An extraschedular rating may be warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would make impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2017). There is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as governing norms. Third, if the rating schedule is inadequate to rate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet App 111 (2008). The Board finds that the evidence in this case does not show an exceptional disability picture and the available schedular ratings for the service-connected knee disabilities at issue are adequate. All the symptoms experienced by the Veteran are contemplated by the appropriate diagnostic criteria as set forth above which rate the disabilities based on frequency and severity of pain, and the resulting limitation of motion, and instability. Additionally, although the Veteran has been reassigned to different responsibilities at his place of employment, he is still maintaining full-time employment. Therefore, the Board concludes that the schedular criteria reasonably describe the Veteran's disability picture. The Board finds nothing exceptional or unusual about the Veteran's disability because the rating criteria contemplate his symptomatology. Thun v. Peake, 22 Vet App 111 (2008). ORDER Entitlement to a rating in excess of 10 percent for a right knee disability is denied. Entitlement to a rating in excess of 10 percent for a left knee disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs