Citation Nr: 1802602 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-18 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an extraschedular rating in excess of 10 percent for a service-connected right knee arthritis disability. 2. Entitlement to an extraschedular rating in excess of 10 percent for a service-connected left knee arthritis disability. 3. Entitlement to an extraschedular rating in excess of 20 percent for a service-connected right knee disability, chondromalacia patella, with instability. 4. Entitlement to an extraschedular rating in excess of 20 percent for a service-connected left knee disability, chondromalacia patella, with instability disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had honorable active service in the United States Navy from August 1987 to May 1992. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which continued separate 10 percent evaluations for the service-connected right knee chondromalacia patella with degenerative changes and left knee chondromalacia patella with degenerative changes. The Veteran appealed the underlying decision in a Notice of Disagreement received in February 2008. In her April 2010 substantive appeal, the Veteran requested a hearing before the Board at a local VA facility. In a May 2010 communication, the Veteran indicated that she no longer wanted a hearing before the Board, and requested a hearing before the Decision Review Officer (DRO). Therefore, the request for a hearing before the Board was withdrawn. See 38 C.F.R. § 20.704(e) (2017). In a May 2011 decision, the RO increased the right and left knee evaluations from 10 to 20 percent disabling, respectively, effective August 3, 2006, the date of claim for increased ratings. The RO also assigned an evaluation of 100 percent for the left knee, effective December 9, 2008, based on arthroscopic surgery necessitating convalescence. An evaluation of 20 percent for the left knee was assigned from February 1, 2009. In a December 2012 decision, the Board decided the claims for entitlement to increased schedular ratings for the service-connected bilateral knee disabilities, awarding separate 10 percent ratings for arthritis of the right knee and arthritis of the left knee, and continuing the separate 20 percent ratings for instability of the right knee and instability of the left knee. This decision is final as of the date of the decision. See 38 C.F.R. § 20.1100 (2017). However, in March 2017, the Agency of Original Jurisdiction (AOJ) issued a Supplemental Statement of the Case (SSOC) for these issues. Then in May 2017, the issues of entitlement to increased ratings for service-connected right and left knee disabilities were certified to the Board for consideration. The SSOC and Board certification were issued in error. These issues are not on appeal. Therefore, the Board cannot and will not address them. To the extent that the Veteran seeks higher schedular ratings for her service-connected knee disabilities (see April 2017 VA Form 9, August 2017 Informal Hearing Presentation and August 2017 VA Form 21-526EZ), these issues are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). In the aforementioned December 2012 decision, the Board also remanded the issues of entitlement to increased evaluations on an extraschedular basis for the service-connected bilateral knee disabilities, for further development. In an April 2016 decision, the Board remanded the issues of entitlement to increased evaluations on an extraschedular basis for service-connected bilateral knee disabilities, for further development. The Board also remanded the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009) (every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that her service-connected disability prevents her from working). However, in a June 2016 statement, the Veteran clarified that she was not seeking a TDIU and withdrew this issue from consideration. Therefore, the TDIU issue is not before the Board. In a September 2017 decision, the Board remanded the issues of entitlement to increased evaluations on an extraschedular basis for the service-connected bilateral knee disabilities for further development, to include an SSOC, as the AOJ received outstanding VA medical records, to include a January 2013 orthopedic consultation report. The record raises the issues of entitlement to service connection for a low back disability and an anxiety disorder secondary to the service-connected bilateral knee disabilities. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). As such, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. Pursuant to a Board remand during this appeal and the provisions of 38 C.F.R. § 3.321(b)(1), the Director of Compensation Service denied an extraschedular rating for the Veteran's service-connected bilateral knee disabilities. 2. The evidence of record does not show that the Veteran's service-connected bilateral knee disability/disabilities results in an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards; the disability/disabilities has not necessitated frequent hospitalizations, nor has it caused marked industrial impairment. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 10 percent on an extraschedular basis for right knee arthritis disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(b), 3.326 (2017). 2. The criteria for the assignment of a rating in excess of 10 percent on an extraschedular basis for left knee arthritis disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(b), 3.326 (2017). 3. The criteria for the assignment of a rating in excess of 20 percent on an extraschedular basis for right knee chondromalacia patella with instability disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(b), 3.326 (2017). 4. The criteria for the assignment of a rating in excess of 20 percent on an extraschedular basis for left knee chondromalacia patella with instability disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(b), 3.326 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2014), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). While the Veteran has not been provided with a new letter that addresses the requirements necessary for referral of a case to the Director of Compensation Service for extraschedular consideration, the Board finds that this deficiency has not prejudiced the claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In so finding, the Board notes that the Veteran has been notified of the evidence necessary to substantiate her claim via written correspondence from the AOJ, as well as a Board decision. Moreover, she has demonstrated actual knowledge of the evidence most pertinent to substantiating her claims. Specifically, the Veteran's representative provided a substantial brief dated in November 2017 in support of her appeal noted above, wherein he provided a complete argument detailing the reason he believed that the Veteran's case should be referred for extraschedular consideration and subsequently granted. The Board also finds that VA has complied with its duty to assist the Veteran in the development of his claim. All appropriate development to obtain the Veteran's pertinent, service treatment records and post-service VA and private medical records has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim. The Board is also unaware of any such records. Moreover, the Veteran was afforded an appropriate VA examination. Further, the Director of Compensation Service reviewed the record and issued a decision with respect to extraschedular consideration. The Board is satisfied that there has been substantial compliance with the December 2012, April 2016, and September 2017 remand directives and it may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, VA has complied with its duty to assist the Veteran. (CONTINUED ON NEXT PAGE) Accordingly, the Board will address the merits of the claims. II. Legal Criteria Extraschedular Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of Compensation Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: "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 as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). In determining whether a case should be referred for extraschedular consideration, the Board must initially compare the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for each disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Board referred the issues in its prior February 2016 decision. The Board has jurisdiction to review determinations of the Director of Compensation Service or Undersecretary for Benefits regarding a Veteran's entitlement to an extraschedular rating. Anderson v. Shinseki, 23 Vet. App. 423 (2009). III. Factual Background and Analysis Extraschedular - Bilateral Knee Disabilities In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. The Veteran is in receipt of a 10 percent schedular rating for her right knee arthritis disability, a 10 percent schedular rating for her left knee arthritis disability, a 20 percent schedular rating for her right knee chondromalacia patella with instability disability, and a 20 percent schedular rating for her left knee chondromalacia patella with instability disability. For consideration in this decision is whether extraschedular compensation is warranted. The Veteran was afforded a VA examination in September 2006. At the time of examination, she reported continuous constant pain and swelling of the knees, especially with prolonged sitting. The Veteran reported that she was able to perform her usual desk job in the field of human resources. Examination included range of motion testing, which revealed extension to zero degrees, bilaterally, and flexion to 130 degrees, bilaterally. Active and passive ranges of motion were identical. There was no evidence of subluxation, laxity, instability, or ankylosis. X-rays demonstrate bilateral knee degenerative joint disease. The examiner concluded that the Veteran was able to perform her activities of daily living and her usual desk job in human resources. An October 2008 private treatment record notes trace effusion in both knees and slight subluxation of the right knee. A December 2008 private treatment record shows the Veteran reported that she was recovering from her left knee arthroscopy with lateral release surgery. She was to begin physical therapy to improve her range of motion. During a December 2010 hearing before a decision review officer, the Veteran testified that she needed right knee surgery; however, she explained that she did not have enough leave from work to take time off. She also asserted that she experienced constant instability of her knees. Finally, the Veteran stated that her bilateral knee disability affected her work, in that she had to take off approximately once a month due to pain. The Veteran was afforded another VA examination in April 2011. At the time of examination, she reported that her knees had progressively worsened, noting that she underwent several surgeries for each knee. The Veteran indicated that her last surgery was in 2008 on her left knee. She reported symptoms of instability, giving way, popping, stiffness, weakness, incoordination, fatigue, and pain. The Veteran reported that she had to constantly look down when she was walking to make sure that the floor was not uneven. She further reported that her knees gave way and caused her to fall. The Veteran also indicated that she utilized knee braces, canes, and crutches. She stated that she was currently employed in a human resources position that was a mostly sitting job; however, she explained that she could not sit or stand for too long so she had an adaptive work station, which was a sit and stand station. The Veteran reported that she missed two months of work due to her left knee surgery. Examination included range of motion testing, which revealed extension to zero degrees, bilaterally, and flexion to 30 degrees with pain, bilaterally. When the Veteran was in a standing position, flexion was to 50 degrees, bilaterally. There was no evidence of additional loss of range of motion after repetitive testing. There was evidence of moderate swelling of the left knee and mild swelling of the right knee. There was no evidence of increased heat or instability. Upon review of x-rays, the examiner diagnosed moderate degenerative arthritis with some medial joint space narrowing and degenerative spurs, bilaterally. A January 2013 VA orthopedic consult note shows the Veteran reported that she experienced bilateral knee pain since active service. She stated that she underwent two right knee surgeries and three left knee surgeries. Examination revealed normal alignment of the knees with stability, bilaterally. There was tenderness with manipulation of the patellofemoral joints. Flexion was approximately to 90 degrees, bilaterally. The assessment was chronic patellofemoral arthritis, bilaterally. The examiner recommended physical therapy, but the Veteran indicated that she could not take time off during the work day to participate in physical therapy. In a March 2013 Administrative Review, the Director of Compensation Service indicated that she had reviewed the evidence of record. The Director indicated that she reviewed the record and noted the Veteran's report of a two month period of time lost from work. In this regard, the Director specifically noted that the Veteran underwent arthroscopic lateral release of the left knee in 2008; however, she also noted that the record revealed that the Veteran was provided a temporary 100 percent evaluation for her left knee surgery, effective December 9, 2008, to February 1, 2009, based on surgery necessitating convalescence. The Director indicated that she reviewed the aforementioned examinations and treatment records, and concluded that the findings did not demonstrate that the right or left knee disability/disabilities prevented the Veteran from working. The Director found that the evidence did not establish that the Veteran's service-connected right or left knee disability/disabilities presents such an unusual disability picture with such related factors as chronic pain, frequent hospitalization for her symptoms, or significant impairment in her employment as to render impractical the application of the regular schedular standards. The Director concluded that entitlement to an evaluation for service-connected right and/or left knee disability/disabilities on an extraschedular basis was not established. A January 2014 VA orthopedic consult note shows that the Veteran underwent MRI's (magnetic resonance images) that revealed extensive cartilage wear and thinning of each patellofemoral joint with mild tricompartmental arthritis. The examiner noted that the Veteran would benefit from physical therapy, and put in a request so that the Veteran would be able to participate in physical therapy during the evening, so that she would not miss time from work. VA outpatient treatment records dated in September 2014 note the Veteran's report of bilateral knee pain and swelling. A May 2015 VA outpatient treatment record shows that the Veteran was fitted with bilateral knee braces, and the Veteran indicated that she was pleased with the support provided by the braces. The Veteran was afforded another VA examination in March 2017. At the time of examination, she reported bilateral knee pain, which had progressively worsened. The Veteran reported that she used Motrin to treat her symptoms. She indicated that she experienced flare-ups and functional loss with activity. The Veteran reported that she used a brace for bilateral knee instability. Physical examination included range of motion testing, which revealed extension from zero to 60 degrees with pain, bilaterally, and flexion from zero to 60 degrees with pain, bilaterally. Repetitive range of motion testing resulted in extension from zero to 40 degrees, bilaterally. Pain, fatigue, and weakness contributed to functional loss, bilaterally. In addition, lack of endurance contributed to functional loss of the left knee. The examiner noted that pain and weakness limited functional ability with repeated use over a period of time, bilaterally. In addition, the examiner noted that fatigability of the left knee also limited functional ability with repeated use over a period of time. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, bilaterally. There was evidence of right knee crepitus and pain with weight bearing. There was no evidence of left knee crepitus or pain with weight bearing. There was evidence of pain with non-weight bearing, bilaterally. Muscle strength testing resulted in a 4/5 with extension and flexion, bilaterally. There was no evidence of muscle atrophy, bilaterally. There was no evidence of ankylosis or shin splints, bilaterally. Joint stability testing revealed joint instability, bilaterally. The examiner noted that the Veteran underwent multiple knee surgeries, to include left knee surgery in 2007 or 2008, during the appeal period. The examiner noted that pain and weakness were residuals of such surgeries. The examiner noted that the Veteran used a brace for bilateral knee instability. Upon examination and review of the record, the examiner diagnosed bilateral knee degenerative joint disease with instability. On October 13, 2017, the Veteran's representative indicated that the SSOC dated on October 12, 2017, was received, and indicated that there was no additional evidence regarding the Veteran's appeal. The Veteran's representative signed a waiver of the 30 day waiting period and requested that the Veteran's claim be forwarded to the Board immediately, and requested that the Board consider any new evidence and proceed with the adjudication of the appeal. Upon review of the record, the Board finds that the Veteran does not warrant an extraschedular rating for her service-connected right and/or left knee disability/disabilities, as the evidence does not demonstrate that her disability has produced an exceptional or unusual disability picture with such related factors as frequent hospitalization or marked interference with employment to render impractical the application of the regular schedular standards. Specifically, there is no evidence that the Veteran's service-connected right or left knee disability/disabilities has resulted in the Veteran having frequent periods of hospitalization for related symptoms; indeed, while the record demonstrates the Veteran underwent left knee arthroscopic release in 2008, it does not show any additional hospitalization for this disability or the right knee disability. Further, the preponderance of the evidence does not demonstrate that there has been marked interference with employment in excess of what is contemplated in the 10 percent schedular rating for the right knee arthritis disability, the 10 percent schedular rating for the left knee arthritis disability, the 20 percent schedular rating for the right knee chondromalacia patella with instability disability, or the 20 percent schedular rating for the left knee chondromalacia patella with instability disability so as to render impractical the schedular rating criteria. In light of the foregoing, the Board finds that the Veteran's service-connected bilateral knee disabilities are not manifested by an exceptional or unusual disability picture to render impractical the application of the regular schedular standards. As the preponderance of the evidence is against the claims for extraschedular ratings for the service-connected bilateral knee disabilities, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Additional Considerations VA must consider all favorable lay evidence of record. 38 USCA § 5107 (b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has accordingly considered the lay evidence offered by the Veteran, in the form of correspondence to VA, in addition to the medical evidence cited above. The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran full competence, the evidence simply does not show entitlement to an extraschedular rating. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an extraschedular rating in excess of 10 percent for a service-connected right knee arthritis disability is denied. Entitlement to an extraschedular rating in excess of 10 percent for a service-connected left knee arthritis disability is denied. Entitlement to an extraschedular rating in excess of 20 percent for service-connected right knee chondromalacia patella with instability disability is denied. Entitlement to an extraschedular rating in excess of 20 percent for service-connected left knee chondromalacia patella with instability disability is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs