Citation Nr: 1756656 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-16 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of 10 percent for retropatellar pain syndrome of the left knee with osteoarthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1984 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for retropatellar pain syndrome of the left knee and assigned a noncompensable rating effective November 14, 2008. In a February 2014 rating decision, the RO granted a 10 percent rating effective November 21, 2013. In January 2016, the Board remanded the issue of entitlement to an initial rating in excess of 10 percent for retropatellar pain syndrome of the left knee with osteoarthritis. Pursuant to the Board's remand instructions, the Veteran's claim was referred to the Director of Compensation and Pension (C&P) Service for consideration of an extraschedular evaluation for the Veteran's left knee. Subsequent to the Board remand, the RO, in a Decision Review Officer (DRO) decision in October 2016, granted an initial 10 percent rating for retropatellar pain syndrome of the left knee, with osteoarthritis, effective November 4, 2008. Additionally, the October 2016 DRO decision granted service connection for retropatellar pain syndrome of the left knee with limitation of extension, assigning a noncompensable rating. The Veteran has not challenged this rating assigned for the separate manifestation of his knee impairment, nor has the Veteran expressed disagreement with the 10 percent rating assigned to the left knee instability, in a June 2015 rating decision. Therefore, the Board will not address them. In April 2017, the Board remanded the claim for further development. Pursuant to the Board's remand, the agency of original jurisdiction (AOJ) scheduled the Veteran for appropriate VA examinations, searched for outstanding VA treatment records, provided appropriate notice to the Veteran, and issued a supplemental statement of the case (SSOC) with regard to the claim for an initial rating in excess of 10 percent for retropatellar pain syndrome of the left knee with osteoarthritis. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). FINDINGS OF FACT 1. The Veteran's left knee disability is not manifested by flexion limited to 30 degrees or less. 2. The Veteran's left knee disability does not present an exceptional or unusual disability picture to render impractical the schedular rating criteria. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left knee retropatellar pain syndrome with osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260 (2017). 2. The criteria for an extraschedular rating for left knee retropatellar pain syndrome with osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103 (a)-compliant notice most recently in May 2017. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Law and Regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities 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 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Diagnostic Code 5003 (degenerative arthritis), states 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, Diagnostic Code 5003. When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. Under Diagnostic Code 5256, ankylosis of the knee, a 30 percent rating is warranted for knee ankylosis in a favorable angle in full extension, or in slight flexion between zero degrees and 10 degrees. A 40 percent rating is provided for knee ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is provided for knee ankylosis in flexion between 20 degrees and 45 degrees. A 60 percent rating is provided for knee ankylosis that is extremely unfavorable, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Diagnostic Code 5260 is utilized to rate limitation of flexion of the knee joint. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, limitation of flexion to 30 degrees warrants a 20 percent evaluation and limitation of flexion to 15 degrees warrants a 30 percent evaluation, the highest schedular evaluation under this diagnostic code. 38 C.F.R. § 4.71a. The Schedule provides that the normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. VA's General Counsel has interpreted that a veteran who has arthritis and instability of the knee could receive separate ratings under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97. In VAOPGCPREC 9-98, the VA General Counsel further explained that, when a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on x-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. In VAOPGCPREC 9-2004, the VA General Counsel held that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion), and Diagnostic Code 5261 (leg, limitation of extension). III. Factual Background VA treatment records show that in August 2008, the Veteran had an X-ray that noted mild narrowing of the femoral-tibial joint space consistent with mild degenerative changes. In September 2008, the Veteran complained of bilateral knee pain with walking and going up and down stairs. He was noted to be ambulatory with a steady gait. In December 2008, it was noted that his past medical history included early degenerative joint disease of the left knee. At January 2009 VA Joints examination, the Veteran reported left knee pain, stiffness, swelling, heat, redness, instability, locking, fatigability, and lack of endurance. The Veteran reported the use of etodolace twice a day with moderate relief. The Veteran noted left knee pain with activities of climbing stairs or climbing up on military vehicles associated with occupational tasks as an instructor of military vehicles. The examiner noted flare ups. On physical examination range of motion of the left knee was full range of motion, 0/0 for extension and range of motion of flexion was 0 to 140 degrees. The examiner found no evidence of painful motion, no weakness, no fatigability, and no lack of endurance or incoordination. There was no additional limitation with repeated use after 3 repetitions. There was no evidence of ankylosis. The Veteran reported that he wore a left knee brace. In a July 2009 Notice of Disagreement, the Veteran reported that he had to leave his job with General Dynamics due to an inability to maintain occupational tasks related to climbing during instruction on proper operation of tanks. On a February 2010 VA Nursing Initial Evaluation Note, the Veteran reported intermittent "locking up" of his left knee. The Veteran denied any recent injuries. On an April 2010 VA Form 9, the Veteran reported that he developed arthritis and as a result he could no longer squat or sit down, that his knees buckled and that he experienced pain walking up and down stairs. The Veteran noted that he wore a knee brace due to pain in his knees. At a November 2013 VA Knee and Lower Leg Conditions examination, the Veteran reported intermittent pain and stiffness that increased with weight bearing activities. The Veteran reported the use of etodolace three times a day for bilateral knee pain. The examiner diagnosed left knee with retropatellar pain syndrome and pain due to degenerative joint disease. On physical examination, the left knee revealed range of motion 0 degrees to 135 degrees, on flexion. Range of motion on extension was full extension. The examiner noted there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Range of motion of the left knee after repetitive use testing was 0 degrees to 135 degrees for flexion and range of motion on extension was full extension. The Veteran was able to perform repetitive-use testing with three repetitions with no additional limitations in range of motion. The examiner noted less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement and swelling for functional loss. The examiner noted the examination was not performed during a flare-up. The examiner noted the Veteran's left knee muscle strength was 4/5. The Veteran's anterior instability was 1+, posterior instability was 1+, medial- lateral instability was 1+ for the left knee. The examiner noted there was no history of recurrent patellar subluxation or recurrent effusion and the Veteran denied having had recurrent patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examiner noted the Veteran had not had any meniscal conditions. No surgeries were noted. The Veteran reported the regular use of a brace. The examiner noted that the Veteran's left knee disability impacted his ability to work as frequent bending, walking, standing, and climbing caused pain and swelling, and loss of range of motion during pain or flare-ups. On a March 2014 Nursing Initial Evaluation Note, the Veteran reported bilateral knee pain. The Veteran noted that he experienced intermittent throbbing and that his current pain level was a 7/10. At a February 2016 VA Knee and Lower Leg Conditions examination, the Veteran reported clicking, popping, swelling and giving way in regards to his left knee. The Veteran indicated intermittent sharp, shooting, pain at a 7-8/10. The Veteran reported that the condition has gotten progressively worse. The Veteran noted pain when climbing up and down stairs and into tall vehicles. The Veteran reported the use of Bengay to treat his left knee. Examination of the left knee revealed range of motion was 5 degrees to 90 degrees, with pain, on flexion. Range of motion on extension was 90 degrees to 5 degrees, with pain. The examiner noted there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus. The examiner noted that the examination was not being conducted during a flare-up. The examiner indicated that the Veteran's left knee muscle strength was 4/5. The Veteran was normal on all joint stability tests, to include anterior instability, posterior instability, medial instability, and lateral instability. The examiner noted there was no history of recurrent patellar subluxation or recurrent effusion and the Veteran denied having had recurrent patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. No ankylosis was shown. The examiner noted the Veteran had not had any meniscal conditions. No surgeries were noted. The Veteran reported the regular use of a brace for his left knee condition. On a May 2016 VA treatment note, the Veteran reported a history of bilateral chronic knee pain and that the pain was an 8/10. An X-ray showed left knee mild degenerative narrowing of the medial compartment. On a June 2017 VA Orthotics Prosthetics Consultation, the Veteran was prescribed bilateral hinged knee braces for joint stabilization. On a June 2017 VA Primary Care Physician's Note, the Veteran reported increased knee pain and a burning sensation, usually associated with weight bearing. The Veteran reported the use of a heating pad and lidocaine patches. The examiner diagnosed bilateral osteoarthritis. At a June 2017 VA Knee and Lower Leg Conditions examination, the Veteran reported left knee locking, pain when standing up, difficulty walking up and down stairs, and difficulty squatting. The Veteran reported taking methocarbamol daily for left knee pain. Examination of the left knee revealed range of motion was 0 degrees to 110 degrees, with pain, on flexion. Range of motion on extension was 140 degrees to 0 degrees, with pain. The examiner noted there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus. The examiner noted the Veteran's left knee muscle strength was 5/5. The Veteran was normal on all joint stability tests, to include anterior instability, posterior instability, medial instability, and lateral instability. The examiner noted there was no history of recurrent patellar subluxation or recurrent effusion and the Veteran denied having had recurrent patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. No ankylosis was shown. The examiner noted the Veteran had not had any meniscal conditions. No surgeries were noted. The Veteran reported the regular use of a brace for left knee support and pain. The examiner noted there was evidence of pain on passive range of motion testing and when the joint was used in non-weight-bearing. In an October 2017 VA addendum medical opinion, the examiner noted that the Veteran had pain on nonweightbearing as well as on weightbearing. The examiner indicated that goniometer reading for passive range of motion was not feasible. The examiner reported that the Veteran had been working as a tank instructor until 2010 when he had to change jobs as his instructor job involved climbing up and down tanks which caused significant pain in his knee. The examiner noted that the Veteran had been working as a medical support assistant, a desk job, since 2010, but that the medical support assistant job also involved standing up periodically to perform certain tasks which was painful. The examiner reported that the Veteran indicated that cold weather affected his knee pain and that he had missed work 2 to 3 times a month in the past year, totally about two weeks of missed work due to left knee pain. IV. Analysis The Veteran filed his claim for service connection for a left knee disability on November 14, 2008. As noted above, the Veteran's retropatellar pain syndrome of the left knee with osteoarthritis is currently rated at 10 percent disabling for the entire period on appeal under Diagnostic Codes 5003-5260. Under Diagnostic Code 5003 and 5010, a 10 percent evaluation is the highest possible evaluation for the Veteran's left knee disability, as the left knee joint is a single major joint; moreover, as will be noted below, there is no evidence of any incapacitating episodes as a result of the Veteran's left knee disability. Consequently, Diagnostic Code 5003 and 5010 cannot be used to provide the Veteran a higher evaluation than already assigned in this case and the Board will no longer discuss it in this decision. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. In addition to Diagnostic Codes 5003 and 5010, the Board is directed to evaluate the Veteran's left knee disabilities under other potentially applicable Diagnostic Codes. In order for a disability evaluation in excess of 10 percent to be assigned under Diagnostic Code 5260, flexion of the knee must be limited to 30 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Here, the Board finds no basis for assigning a rating in excess of 10 percent under Diagnostic Code 5260. The weight of the evidence shows that the Veteran has demonstrated flexion of the left knee beyond 30 degrees on every occasion range of motion has been tested during the course of his appeal and the range of motion testing considered functional loss due to pain. Thus, on this record, a higher disability evaluation under Diagnostic Code 5260 is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. As noted above, the Veteran is in receipt of a separate noncompensable disability rating for retropatellar pain syndrome of the left knee with limitation of extension under Diagnostic Code 5261. As the Veteran has not challenged this rating assigned for the separate manifestation of his knee impairment, nor has the Veteran expressed disagreement with it, the Board will not address it. Similarly, with respect to instability, the Veteran is currently separately service-connected for left knee instability at 10 percent under Diagnostic Code 5257. As was also noted above, the Veteran has not challenged this rating assigned for the separate manifestation of his knee impairment, nor has the Veteran expressed disagreement with the 10 percent rating assigned to the left knee instability, in a June 2015 rating decision. Therefore, the Board will not address it. The Board has considered whether a higher rating may be assigned on the basis of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca, supra. The Board finds that the Veteran's current 10 percent disability rating for the left knee disability takes into consideration and incorporates the functional loss and impairment due to pain and flare-ups. The left knee disability has not been shown to produce additional impairment of extension or flexion due to pain or functional loss that would warrant ratings higher than 10 percent. See DeLuca; supra. As noted, the Veteran does not have limitation of flexion of the knee limited to less than 45 degrees when considering pain and functional loss. The current functional impairment of the left knee and the symptoms of pain are encompassed in the current 10 percent rating under Diagnostic Code 5260. The Veteran is already receiving the minimum compensable rating for pain, and as such, 38 C.F.R. § 4.59 is not applicable. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. There is no evidence of ankylosis of the left knee. Therefore, Diagnostic Code 5256 is not for application. The Board also finds that a separate rating is not warranted under either Diagnostic Code 5258 or 5259. Diagnostic Codes 5258 and 5259 address meniscus injuries and symptoms which is not shown by the evidence of record. In light of the Veteran's painful motion and x-ray evidence of arthritis, the Veteran's currently assigned 10 percent evaluation is appropriately assigned under Diagnostic Codes 5003-5260. See 38 C.F.R. § 4.71a Accordingly, the Veteran's claim for increased evaluation of his left knee retropatellar pain syndrome with osteoarthritis disability must be denied at this time based on the evidence of record. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5256-5263. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). V. Extraschedular Rating In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the law, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321 (b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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, Compensation Service (Director) for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. As noted above, the Board, in January 2016, remanded the Veteran's claim to include extraschedular consideration by the Director in accordance with 38 C.F.R. § 3.321(b). In February 2017, the Director issued an administrative decision on the matter, ultimately finding that the evidentiary record failed to show an exceptional disability pattern for the service-connected left knee disability that rendered application of the regular rating criteria as impractical. See Thun v. Peake, 22 Vet. App. 111 (2008). The Director noted that the evidence demonstrated that the Veteran had interference with employment where the Veteran reported the need to change to a less physically demanding position. The Director concluded that no unusual or exceptional disability pattern had been demonstrated such as marked interference with employment or frequent periods of hospitalization as to render application of the regular rating criteria as impractical. Accordingly, entitlement to an extraschedular evaluation for the service-connected left knee retropatellar pain syndrome with osteoarthritis disability under § 3.321(b)(1) was denied. Based on thorough consideration of the evidence, the Board agrees with the Director's finding that the Veteran's disability picture is not so exceptional or unusual as to render impractical the application of the regular schedular criteria. In particular, the symptoms that the Veteran reports as being associated with the disability at issue, such as pain, weakness, fatigability, lack of endurance, and limitation of motion, are entirely contemplated by the schedular criteria. Additionally, in an October 2017 medical opinion, the examiner reported that Veteran indicated that cold weather affected his knee pain and that he had missed work 2 to 3 times a month in the past year, totally about two weeks of missed work for the past year due to left knee pain. The Board concludes that missing work for about two week in the past year does not reflect the governing norm of marked interference with employment. Therefore, an unusual or exceptional disability pattern has not been demonstrated such as marked interference with employment or frequent periods of hospitalization as to render application of the regular rating criteria as impractical. To the extent the evidence of record has also suggested that the Veteran's need to take less physically-demanding jobs as a result of his service-connected left knee disability, which results in him earning less money, constitutes marked interference with employment, this was addressed by the United States Court of Appeals for Veterans Claims (Court) in Thun v. Peake, 22 Vet. App. 111 (2008). Specifically, in that decision, the Court stated: We cannot agree with [the Veteran's] argument that an inadequacy in the rating schedule can be established solely by showing an asserted gap between his income (including his VA benefits) and the income of similarly qualified workers in his field. This argument is based on the faulty proposition that a schedular rating for a service-connected disability is not adequate unless it compensates the veteran for the actual individualized income that is not realized but for that disability. . . . [U]nder VA's rating schedule since 1933, the actual wages or income earned by a particular veteran are not considered relevant to the calculation of the average impairment of earning capacity caused by a disability. Indeed, given that the average impairment in earning capacity is the standard, within the current rating schedule, many veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average as a result of their disability. However, extraschedular consideration cannot be used to undo the approximate nature that results from the rating system based on average impairment of earning capacity authorized by Congress. Accordingly, we hold that, when the RO or Board evaluates whether the criteria in the rating schedule adequately correspond to the symptomatology and severity of a claimant's disability, § 3.321(b)(1) does not contemplate or require a calculation of the income that may not have been realized because of a service-connected disability. Id. at 116-17. In summary, the Veteran's service-connected retropatellar pain syndrome of the left knee with osteoarthritis does not present a disability picture that is so exceptional in circumstance that an extraschedular consideration may be required to compensate the Veteran because the schedular evaluations are inadequate. Thus, referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER An initial rating in excess of 10 percent for retropatellar pain syndrome of the left knee with osteoarthritis, to include on an extraschedular basis, is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs