Citation Nr: 1804120 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-18 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an increased disability rating in excess of 20 percent for left knee disability. ATTORNEY FOR THE BOARD A. B., Counsel INTRODUCTION The Veteran served on active duty from May 1953 to May 1955. This case comes before the Board of Veterans' Appeals (Board) on appeal from June and October 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDING OF FACT The Veteran's left knee disability is manifested at most by moderate instability, painful motion, and weakness without compensable limitation of motion. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for left knee disability are not met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.71(a), Diagnostic Codes 5257, 5260, 5261 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, the Veteran has not alleged prejudice with respect to notice, as is required, and none is found by the Board. Therefore, additional notice is not required, and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO has obtained the Veteran's service treatment records and all identified VA and private treatment records. The Veteran has not identified any outstanding and available medical treatment records. In addition, the Board finds that the VA medical opinion evidence is adequate as it is predicated on an accurate reading of the medical records contained in the Veteran's claims file as well as a full examination of the Veteran. The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. All necessary findings were provided. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Therefore, VA has also fulfilled its duty to assist a veteran in the development of the claim. See 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating: Left Knee The Veteran contends that his left knee disability warrants a disability rating in excess of 20 percent. The Board finds that an increased disability rating for the left knee disability is not warranted. The Veteran's claim for increased rating was received in November 2014. Therefore, the relevant focus for adjudicating an increased rating claim is the period beginning November 2013, one year prior to the claim for increase. Hart v. Mansfield, 21 Vet. App. 505 (2007); cf 38 C.F.R. § 3.156(b) (2017). The Veteran's left knee is rated as 20 percent disabling by analogy under Diagnostic Code 5257 for moderate subluxation or lateral instability. Under Diagnostic Code 5257, a 30 percent evaluation is assignable when such subluxation or instability is severe. 38 C.F.R. § 4.71(a), Diagnostic Code 5257 (2017). Limitation of flexion and extension of the knees is rated under 38 C.F.R. § 4.71(a), Diagnostic Codes 5260 (flexion) and 5261 (extension) (2017). Regarding limitation of flexion, a 10 percent rating is warranted where flexion is limited to 45 degrees, a 20 percent rating is warranted where flexion is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71(a), Diagnostic Code 5260. A 10 percent rating is warranted where extension of the leg is limited to 10 degrees, a 20 percent rating is warranted where extension of the leg is limited to 15 degrees, and a 30 percent rating is for assignment for extension limited to 20 degrees. 38 C.F.R. § 4.71(a), Diagnostic Code 5261. Full range of motion in the knee is from 0 degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II (2017). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998). The General Counsel has also held that separate rating can be provided for limitation of knee extension and flexion that is compensable under Diagnostic Code 5260 or 5261. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2017), pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, flare-ups, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Court has recently held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, to support an increased rating, pain must result in functional loss in terms of limitations in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. In order to warrant a higher rating for the left knee disability, the record must demonstrate the functional equivalent of severe subluxation or instability, ankylosis, limitation of flexion to at least 45 degrees, or limitation of extension to at least 10 degrees. 38 C.F.R. §§ 4.59, 4.71(a), Diagnostic Codes 5256, 5257, 5260, 5261; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran was provided with two VA examinations during the course of this appeal. The Board notes that the rest of the medical records in the claims file demonstrate continued treatment but do not demonstrate range of motion testing or provide any additional information regarding instability or impairment of left knee function. In addition, the Veteran did not report limitation of range of motion or provide any new information regarding instability or impairment of left knee functioning following the 2016 VA examination. As such, the analysis will focus on the VA examinations and the Veteran's reports. Regarding left knee range of motion, upon examination in April 2015, left knee extension was possible to 125 degrees and extension was limited by five degrees. Upon VA examination in July 2016, left knee extension was possible to 115 degrees and extension was again limited by five degrees. In both examinations, there was no evidence of pain while weight bearing or pain on palpation, and the loss of range of motion was found to not contribute to any functional loss. The examiners found that pain, weakness, fatigability, and incoordination do not significantly limit functional ability with repeated use over a period of time. Muscle strength was full and the examination was negative for ankylosis. The record demonstrates that the Veteran has not had compensable limitation of flexion or extension in the left knee at any time during the period on appeal, as his flexion has been possible well above 45 degrees and extension limited less than 10 degrees, even when considering pain and other functional factors. There was no indication that range of motion was additionally limited by functional factors, nor does the record demonstrate such additional limitation at any time throughout this appeal. The recorded limitation of flexion and extension does not approximate the criteria for a compensable rating at any time throughout the appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261; see DeLuca v. Brown, 8 Vet. App. at 202. The Board acknowledges that the Veteran has reported pain, stiffness, and incoordination as well as flare-ups in various statements during the appellate period. However, he did not report any additional limitation of motion during any flare-ups, and he specifically denied such flare-ups during the VA examinations. Nevertheless, examiners have assessed the impact of pain and other factors on motion. These factors were not shown to result in additional limitation that would warrant a compensable evaluation. To the extent the Veteran was reporting an increase in the pain level, he has not reported any accompanying increase in limitation of motion. Both VA examiners also found no evidence of subluxation or instability. The anterior instability, posterior instability, medial instability, and lateral instability tests were all normal during both VA examinations. The Board acknowledges the December 2015 statement in which the Veteran reported that he experiences numbness, instability, and buckling in his leg, which causes decreased strength in his leg. However, the VA examinations, conducted before and after this statement found full strength in his left leg. Moreover, the record does not demonstrate that the Veteran's reported subluxation or instability is severe. He has not reported that such "buckling" occurs frequently and causes him to be unable to sit, stand, or walk due to pain, as would be expected with severe instability. Moreover, the VA examinations found all testing for instability to be negative. The Board finds that at no point has the Veteran's left knee instability been found to be or reported to be greater than moderate in nature. All objective evidence regarding instability has revealed the absence of instability. Therefore, an increased rating on the basis of instability is not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Subluxation has never been found on examination. There is also no evidence of impairment of the tibia and fibula, ankylosis, genu recurvatum, or dislocation of the semilunar cartilage of the left knee to warrant a separate rating under Diagnostic Codes 5256, 5258, 5262, and 5263. Diagnostic studies have not shown these abnormalities, and they have not been reported elsewhere in the record. Therefore, a separate rating is not warranted on this basis. The Veteran has not reported, nor has any neurological impairment related to the left knee been found upon examination. The Board notes that the Veteran carries an additional and unrelated diagnosis of peripheral neuropathy of the left lower extremity. Therefore, a separate rating is not warranted on this basis. All other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, have been considered as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no other basis for assigning a higher schedular rating. The Board has considered all potentially relevant Diagnostic Codes and has found no avenue for awarding a compensable disability rating in this case. In considering the appropriate disability ratings, the Board has also considered the Veteran's contention that his left knee is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. As such, the Board concludes that the Veteran's service-connected left knee disability does not more nearly approximate the next highest disability rating and, therefore, the claim for an increased schedular disability rating for service-connected left knee disability is denied. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2017). The Court of Appeals for Veteran Claims has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1) (2017), for determining whether a Veteran is entitled to an extra-schedular rating-(1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 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. Here, the nature and severity of the Veteran's left knee disability, including the pain, weakness, instability, and painful motion, are contemplated by the rating criteria. In other words, he does not experience problems due to this service-connected disability that are not accounted for by the rating schedule. Therefore, referral for extra-schedular consideration is not warranted. The Veteran has not raised any other issues regarding the left knee disability, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Accordingly, the Board concludes that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). Because, however, there is not an approximate balance of evidence, that rule is not helpful to the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER An increased disability rating in excess of 20 percent for left knee disability is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs