Citation Nr: 1407614 Decision Date: 02/21/14 Archive Date: 03/04/14 DOCKET NO. 06-30 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a disability rating in excess of 10 percent for the service-connected residuals of a shrapnel wound and contusion to the left knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from June 1969 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran and his spouse appeared and testified at a hearing held in Washington, D.C. before the undersigned Veterans Law Judge in July 2011. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). The appeal was remanded in October 2011 and August 2012. FINDINGS OF FACT 1. The shell fragment wound of the Veteran's left thigh is manifested by subjective complaints with no muscle injury. 2. The Veteran's service-connected left knee disability also includes patellofemoral pain syndrome and/or chondromalacia of his left knee, which were of service onset, and mild degenerative joint disease, manifested by painful motion, without limitation of extension, instability, or dislocated meniscus. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of shell fragment wound and contusion of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.55, 4.56, 38 C.F.R. § 4.73, Diagnostic Code 5311 (2013). 2. The criteria for service connection and a separate rating of 10 percent for chondromalacia and/or patellofemoral syndrome with mild degenerative joint disease have been met. 38 U.S.C.A. §§ 1110, 1155, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.321, 4.44, 4.45, 4.59, 4.71a, Diagnostic Code 5003 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a letter dated in May 2010, the RO advised the claimant of the information necessary to substantiate the claim, and of his and VA's respective obligations for obtaining specified different types of evidence. He was informed of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., treatment records and statements of personal observations from other individuals. He was informed that a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). He was also provided with information regarding effective dates. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, the duty to notify has been satisfied. The timing defect of the May 2010 correspondence was cured by the RO's subsequent readjudication of this appeal and issuance of a supplemental statement of the case, most recently in June 2013. Under the VCAA, the VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained, as have VA treatment records. Private treatment records adequately identified by the Veteran have been obtained. Pursuant to the October 2011 and August 2012 Board remands, recent VA treatment records and private treatment records were obtained, and the Veteran underwent examinations in November 2011 and May 2013. Thus, as to the issue decided herein, there has been compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (claimant is entitled to substantial compliance with the Board's remand directives). The VA examinations describe the disabilities in sufficient detail for the Board to make an informed decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The May 2013 examination was a neurological examination, as had been directed in the December 2012 Board remand. At the end of the examination, the examiner stated that an "orthopedic evaluation might elucidate further restriction." The Veteran's representative states that the appeal should be remanded to afford the Veteran an orthopedic examination, based solely on that statement. However, during the 9 years of this appeal, the Veteran has been provided VA examinations concerning his service-connected left knee condition in September 2005, June 2008, September 2010, November 2011, and May 2013. The neurology examination in May 2013 was provided because there were a couple of mentions in the claims folder suggesting that the Veteran might have neurological findings, and the previous 4 examinations addressed the joints or muscles. Moreover, they contain sufficient orthopedic findings to rate the disability; it was neurological findings that were found to be inadequate, prompting the neurology examination. The May 2013 examiner did not state that there had been an increase in severity in the condition, and there is no other evidence indicating that the Veteran's left knee condition has worsened since the last examination. 38 C.F.R. § 3.327(a). Thus, the Board finds that all necessary notification and development has been accomplished and that therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). II. Analysis Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected left knee disability has been characterized as residuals of shrapnel wound and contusion of the left knee. Effective from July 1972, the condition has been evaluated under Diagnostic Code 5311, Muscle Group XI, which encompasses the posterior and lateral crural muscles and the muscles of the calf, with function including propulsion and plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. 38 C.F.R. § 4.73, Diagnostic Code 5311. A slight disability warrants a noncompensable evaluation, a moderate muscle disability warrants a 10 percent evaluation, a 20 percent rating is warranted for a muscle injury that is moderately severe, and a 30 percent rating is assigned for a muscle injury that is severe. Id. Currently, a 10 percent rating is in effect, reflective of moderate disability. To determine the severity of a muscle injury, it is necessary to look at the type of injury, history and complaint, and objective findings. 38 C.F.R. § 4.56(d). The factors considered in evaluating the severity of a muscle injury are the velocity, trajectory and size of the missile which inflicted the wounds; the extent of the initial injury and duration of the hospitalization; the therapeutic measures required to treat the disability; and the current objective findings, such as evidence of damage to muscles, nerves and bones which results in pain, weakness, limited or excessive motion, shortening of extremities, scarring or loss of sensation. 38 C.F.R. § 4.56. Additionally, the cardinal signs and symptoms of muscle disability for VA purposes are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 3 8 C.F.R. § 4.56(c). The Veteran was afforded a VA examination in November 2011, to evaluate his left knee muscle injury. However, the examiner concluded that the Veteran did not have a muscle injury. He opined that the Veteran's in-service hospitalization was more likely to remove an osteochondral mass than for his shrapnel wound. The examiner noted that, in September 1970, the Veteran was seen with sharp pain over the anterior tibial tubercle of a week's duration. There was no history of trauma. He was seen by an orthopedist, and was found to have symptomatic osteochondrosis of the left knee. X-rays showed evidence of an osteochondral mass beneath the patellar tendon and the Veteran was transferred to "PACOM," which he said was the hospital on Guam, for elective surgery to remove the mass. Although there were no records of that hospitalization, the Veteran continued to have knee pain and was diagnosed with chondromalacia patella. After service, an October 1982 VA orthopedic note reports that the Veteran gave a history of in-service surgery to remove shrapnel, and also of resection of the tibial tuberosity. The examiner indicated that there was no medical evidence which pointed specifically to residuals of a shrapnel wound. Specifically regarding muscle injury, the Veteran had 5/5 strength in the left knee. There was no evidence of any weakness and the Veteran himself said he had never had any muscle injury. Based on the Veteran's history, the shrapnel wound was to the left knee itself. The left knee scar could as easily be a surgical scar as a shrapnel injury scar. The examiner concluded that the final diagnosis for the muscle injury examination was muscle injury, not found on examination. This assessment is consistent with other evidence of record. Service treatment records do not show treatment for a shrapnel wound, nor are the records of a hospitalization on file. However, in September 1970, the Veteran complained of left knee pain, and X-rays showed evidence of an osteochondral mass beneath the patellar tendon, for which he was to be transferred for surgery. The VA examination in March 1973, while disclosed increased prominence of the left tibial tuberosity, also included X-rays which did not reveal any abnormalities, in contrast to the osteochondral mass shown in service. That examination disclosed the presence of a 2 inch scar lateral to the tibial tuberosity, as well as a 1/2 inch scar over the left patella, and scattered 1/4 inch scars about the lateral and medial aspect of the left lower leg. The October 1982 VA treatment records specifically noted a tender "incisional" scar over the tibial tuberosity of the left knee. At that time, the Veteran reported a shrapnel wound to the left knee, in addition to resection of the tibial tuberosity of the left knee. Moreover, no muscle injury residuals have been demonstrated. In addition to the foregoing, the VA examination in September 2005 specifically noted that there was no atrophy or loss of muscle. On a VA examination in June 2008, the examiner also concluded that, whatever the shrapnel wound was, there was absolutely no evidence that he suffered any intra-articular injury of the left knee. The examiner said that the Veteran had not suffered any contusion of the left knee, but simply a laceration of skin from shrapnel with current scar residuals of that laceration. There is no other medical evidence identifying current residuals of a shrapnel wound, and the Veteran's complaints refer to the symptomatology involving the knee in general. The current 10 percent rating for the Veteran's service-connected left knee disability has been in effect for over 20 years, and, thus, is protected unless based on fraud. 38 C.F.R. § 3.952. Moreover, service connection is also protected. 38 U.S.C.A. § 1159; 38 C.F.R. § 3.957. Changing diagnostic codes from a muscle injury to one primarily focused on orthopedic function could have the effect of severing service connection for the muscle injury. See Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011); Murray v. Shinseki, 24 Vet. App. 420 (2011). Thus, the Board finds that changing the diagnostic code is impermissible in this case. However, both the June 2008 examiner and the November 2011 examiner found that the Veteran had sustained other knee disability during service. The June 2008 examiner noted that in June 1972 the Veteran complained of knee pain, and was diagnosed as having chondromalacia. He said that, therefore, the Veteran did have a left knee disability of service onset, which the examiner diagnosed as patellofemoral syndrome. The November 2011 examiner also diagnosed patellofemoral syndrome. He noted that the Veteran underwent surgery to remove a symptomatic osteochondrosis of the left knee. However, he continued to have knee pain and was diagnosed with chondromalacia. Thus, he had a left knee condition, independent of any shrapnel wound, diagnosed in service as chondromalacia. In view of these findings, the Board finds that service connection, as well as a separate rating, is warranted for the left knee chondromalacia patella and/or patellofemoral syndrome. The Veteran contends that he has been unable to keep up with work requirements, due to his service-connected knee disability. He states that he gets pains in his leg and that sometimes his leg gives way and causes him to fall. At his Board hearing in July 2011, the Veteran testified that he had constant, sometimes severe pain in his knee. He said that he had to walk with a cane, and take pain medication. He said that he could not walk very far, and had limited mobility in the left knee. His pain was on a daily basis. He said he took Percocet and also received cortisone injections. He underwent physical therapy twice a week from a private physical therapist. He said that his knee went out on him sometimes, such as when he was walking down a step, or when he walked 2 or three blocks. He said that the knee would lock up or collapse and that he had fallen when his knee had given way. He said that he used an elastic brace on the knee. He said that he did not drive anymore because his knee would sometimes give out and sometimes lock. He said he had been in a motor vehicle accident when the knee just stopped working. Sometimes the knee would swell. Sometimes the pain kept him from sleeping. In determining the most appropriate diagnostic code, neither patellofemoral syndrome nor chondromalacia has a listed diagnostic code. However, most of the X-rays show mild degenerative changes in the left knee, which cannot be dissociated from the service-connected disability picture. 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. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, warrants a 10 percent evaluation; with the addition of occasional incapacitating exacerbations, a 20 percent evaluation is warranted. 38 C.F.R. § 4.71a, Code 5003. Here, limitation of motion warranting a compensable rating, based on either flexion or extension, has not been shown. The VA examination in September 2005 showed range of motion from 0 degrees of extension to 125 degrees of flexion. All of the subsequent VA examinations showed extension to 0 degrees. Flexion was to 120 degrees in June 2008, to 90 degrees before limited by pain in September 2010, and to 130 degrees in November 2011. 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 (2013). Limitation of leg (knee) flexion is rated 0 percent when limited to 60 degrees, 10 percent when limited to 45 degrees, and 20 percent when limited to 30 degrees. 38 C.F.R. § 4.71a, Code 5260. Limitation of extension of a leg (knee) is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, and 20 percent when limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5261. Separate ratings may be awarded for limitation of flexion and limitation of extension. VAOPGCPREC 9-2004. As can be seen, the Veteran's left knee extension is normal, and his range of flexion of this joint far exceeds the limitation of motion contemplated for a 10 percent rating. However, painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran's primary symptom concerning his left knee is pain, with signs such as tenderness to palpation and an antalgic gait. Therefore, the Board finds that a 10 percent rating is warranted, under Diagnostic Code 5003. In reaching this determination, the benefit-of-the-doubt rule has been applied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When evaluating musculoskeletal disabilities based on limitation of motion, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). However, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must cause additional functional impairment. Moreover, functional impairment must be supported by adequate pathology. Johnson v. Brown, 9 Vet. App. 7, 10 (1996). Functional impairment, beyond the impairment contemplated by the 10 percent evaluation assigned above, has not been demonstrated. In this regard, the VA examination in September 2005, June 2008, September 2010, and November 2011 found that repetitive motions did not cause additional loss of range of motion due to pain, fatigue, weakness, or lack of endurance. Examinations have disclosed no significant flares, for the most part. On the VA examination in November 2011, the Veteran reported flareups of left knee pain, which were caused by various physical activities, and said he tried to minimize the activities that produced the flare ups. Private treatment records dated from January through September of 2011 show that the Veteran was in a motor vehicle accident in December 2010. He complained of pain in his neck, shoulders, left side of back and left knee subsequent to the accident. With regard to the left knee, the Veteran reported treatment at VA for a left knee injury sustained during the Vietnam War. Physical examination demonstrated two scars but no tenderness or other objective findings of any relevant pathology. The impression was a past injury in the left knee with a resolving contusion of the left knee without evidence of effusion. An April 2011 follow up treatment note indicates that the Veteran reported ongoing left knee pain that was an old problem, although he noted that he had jammed this knee in the motor vehicle accident and had sustained an exacerbation of knee pain. The remaining treatment records only show the Veteran's continued reports of pain but no objective findings. The records noted that the Veteran was still able to perform the activities of his job as a political consultant. However, VA treatment records dated during the same period do not indicate that the Veteran reported the motor vehicle accident to his treating physicians. A March 2011 primary care note shows that the Veteran reported treatment by a private physician for physical therapy, which was helping, and that he was receiving pain medication through that medical professional. The Veteran had no specific left knee complaints. In July 2011, however, he was seen by his primary care physician and complained of increasing left knee pain. He complained that the knee had given out on him unexpectedly a couple of times. Physical examination demonstrated full range of motion, negative anterior drawer, negative Lachman's test, and possible positive McMurray's test. The knee was very painful to palpation over the anterior tibial tuberosity. An arthrocentesis was performed, and 2 cc's of straw colored fluid with a tinge of blood was removed. Post procedure, the Veteran reported less pain. The physician noted that this was an unusual examination and history and that he could not explain why the Veteran's tibial tuberosity was so hyperasthetic. He gave a steroid injection that day because he was not able to give opioids due to the Veteran's recorded recent positive cocaine tests. He was seen again in August 2011 with complaints of severe left knee pain that was worse when walking or sitting for a long time and awakened him from sleep. Physical examination showed an exaggerated tibial prominence that was exquisitely tender to touch. However, the evidence does not indicate that a separate compensable rating is warranted under any other Diagnostic Code pertaining to the knees. The Veteran is already in receipt of a 10 percent rating for a painful scar, under Diagnostic Code 7804. He is also in receipt of a 10 percent rating for a shell fragment wound reflective of moderate muscle disability under Diagnostic Code 5311. In addition, in this decision, he has been assigned a 10 percent rating based on a painful knee joint. Pyramiding, that is, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2013). Although the Veteran reports that he has buckling of the knee, no clinical findings of instability have been shown. The VA examination in September 2005 noted that there was no instability of the knee. In June 2008, it was noted that the left knee demonstrated no laxity. On the November 2011 VA examination, there was noted to be no demonstrable instability in the left knee, and Lachman and McMurray tests were negative. Regarding the complaints of locking, the examiner in November 2011 commented that there was no physiological mechanism demonstrated to be present on the MRI to account for locking of the left knee. Thus, a separate rating is not warranted under Diagnostic Code 5257, which pertains to recurrent subluxation or lateral instability, or Diagnostic Code 5258, which pertains to dislocated semilunar cartilage (i.e., medial meniscus), with locking episodes. In September 2011, it was noted that there appeared to be a neuropathic quality to his pain, and the Veteran was afforded a VA neurology examination in May 2013. The Veteran reported tingling associated with the patellar region that alternated with pain. The diagnosis was contusion to the left knee; notably, the Veteran did not have any symptoms attributable to any peripheral neuropathy condition. His strength appeared intact at 5/5. Sensory examination revealed that the area in and around the left tibial tuberosity was sensitive. It was painful to touch, and he also complained of numbness. This numbness and pain was not in any specific dermatomal pattern or any specific single nerve pattern. It was due to the apparent blunt trauma. There were paresthesias or tingling sensations around the knee at the site of injury, also mild swelling, but no obvious sensory loss. Temperature, position, and vibration sensation were all intact. There were no trophic changes. The Veteran's injury was due to the blunt trauma sustained and had caused a mechanical injury to the knee, which was orthopedic in nature. The injury resulted in subjective symptoms of pain, the severity of which could not be measured. In sum, the evidence establishes that the Veteran has subjective complaints of numbness and tingling, with no muscle injury, due to his shrapnel wound. However, he has other knee disability which two examiners have noted was of service onset. This disability, chondromalacia and/or patellofemoral syndrome with mild degenerative changes, is manifested by painful motion warranting a 10 percent rating, but no higher. Moreover, there are no neurological manifestations warranting a separate rating. In this regard, a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). The Veteran's gunshot wound residuals may well cause some impairment in activities. The evidence, however, does not suggest that the rating criteria are inadequate to describe his knee disabilities, and, consequently, the question of an extraschedular evaluation is not raised. See Barringer v. Peak, No. 06-3088 (U.S. Vet. App. Sept. 16, 2008); Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, the rating schedule provides for higher evaluations for both muscle and orthopedic disabilities involving the knee, and there is no symptomatology pertaining to the disabilities at issue which the Board has not considered in its evaluation. Finally, the Veteran does not claim to be unemployable due solely to his service-connected left knee conditions, nor does the evidence indicate such. Therefore, a claim for total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) is not inferred as part of the current claim for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An evaluation in excess of 10 percent for shell fragment wound of the left knee is denied. Service connection and a separate evaluation of 10 percent for chondromalacia and/or patellofemoral syndrome with mild degenerative joint disease of the left knee is granted, subject to the statutes and regulations governing the payment of monetary benefits. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs