Citation Nr: 0309146 Decision Date: 05/15/03 Archive Date: 05/27/03 DOCKET NO. 99-20 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased rating for arthritis of the left knee, currently rated as 10 percent disabling. 2. Entitlement to an increased rating for hypertension, currently rated as 30 percent disabling. 3. Entitlement to service connection for an enlarged heart. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran's active military service extended from September 1973 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The case was previously before the Board in March 2001, when it was remanded for examination of the veteran and medical opinions. The issue involving rating the veteran's service connected hypertension requires additional remand, which follows the Board's decision below. FINDINGS OF FACT 1. VA has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's service-connected left knee disability is manifested by extension to 0 degrees, flexion to 120 degrees, normal x-ray examination, and complaints of pain and discomfort. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for arthritis of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a and Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of VCAA, or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). The new law also imposes a significant duty to assist the appellant with their claim and to provide them notice of evidence needed to support the claim. More recently, new regulations were adopted to implement the VCAA. See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)(2002). First, VA has a duty to notify the appellant and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b)(2002). Information means non-evidentiary facts, such as the veteran's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. 38 C.F.R. § 3.159(a)(5)(2002). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2002). With respect to this duty to assist the veteran in obtaining evidence, the VCAA requires that VA notify the claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). In this case, VA informed the appellant of the evidence needed to substantiate his claim in a letter dated May 2001. This letter also informed the appellant of VA's duty to assist the appellant and which party would be responsible for obtaining which evidence. The Board concludes that the discussion therein adequately informed the appellant of the information and evidence needed to substantiate his claim, and of VA's duty to assist in obtaining evidence thereby meeting the notification requirements of the VCAA. As discussed above, VA has fulfilled its duties to inform and assist the appellant on his claim. Accordingly, the Board can issue a final decision because all notice and duty to assist requirements have been fully satisfied, and the appellant is not prejudiced by appellate review. A remand or further development of the claim would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to inform and assist the appellant in this case. Further development and further expending of VA's resources are not warranted. Any "error" to the appellant resulting from this Board decision does not affect the merits of his claims or her substantive rights, for the reasons discussed above, and is therefore harmless. See 38 C.F.R. § 20.1102 (2002). Having determined that the duties to inform and assist the appellant have been fulfilled, the Board must assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). II. Increased Rating for Left Knee Service-connected disabilities are rated in accordance with a schedule of ratings which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.321, and Part 4 (2002). The disability ratings evaluate the ability of the body to function as a whole under the ordinary conditions of daily life including employment. Evaluations are based on the amount of functional impairment; that is, the lack of usefulness of the rated part, or system, in self support of the individual. 38 C.F.R. § 4.10 (2002). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2002). In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2002). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2002); Peyton v. Derwinski, 1 Vet. App. 282 (1991). However, while the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran claims that his service connected left knee disability has increased in severity and warrants an increased rating. In July 1996 a VA examination of the veteran's knees was conducted. The veteran complained of pain and swelling in both knees. However, physical examination did not reveal the presence of any swelling or deformity of the knees. Range of motion testing revealed that the veteran had extension to 0 degrees and flexion to 90 degrees in both knees and that flexion past 90 degrees was limited by pain. X-ray examination revealed mild osteoarthritis in both knees. In December 1999 another VA examination of the veteran was conducted. Range of motion testing again revealed that the veteran had extension to 0 degrees and flexion to 90 degrees in both knees and that flexion past 90 degrees caused pain and tenderness in the patellar area. There was no indication of swelling, deformity, or any laxity of the ligaments. X- ray examination of the knees revealed chondromalacia of the patella of both knees. In September 2001 the most recent VA examination of the veteran was conducted. Physical examination of the left knee revealed no "swelling, tenderness or loss of motion." Range of motion testing revealed that the veteran had "full extension," extension to 0 degrees and flexion to greater than 120 degrees. X-ray examination was negative for abnormalities. The examining physician indicated that "at this time I find no physical abnormalities of [the veteran] knees and his x-ray is negative. It would seem that he has rather mild limitation due to this problem." The service connected left knee disability is currently rated as 10 percent disabling under diagnostic codes 5010 and 5257. Diagnostic code 5010 is used to rate traumatic arthritis and requires that traumatic arthritis be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2002). Diagnostic code 5003, degenerative arthritis, requires rating under limitation of motion of the affected joints, if such would result in a compensable disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2002). When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2002). Diagnostic code 5257 contemplates other impairment of the knee with recurrent subluxation or lateral instability. This diagnostic code provides for ratings of 10, 20, or 30 percent depending on the level of severity. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5257 (2002). In the present case, the Board notes that there is no evidence of record which reveals that the veteran suffers from subluxation or lateral instability of the left knee. As such, a rating under this diagnostic code is not appropriate. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. 38 C.F.R. § 4.14. Thus, a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." See Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, which is contrary to the provisions of 38 C.F.R. § 4.14. A claimant may have separate and distinct manifestations attributable to the same injury, however, and if so, these should be rated under different diagnostic codes. See Fanning v. Brown, 4 Vet. App. 225 (1993). VA's Office of the General Counsel provided additional guidance involving increased rating claims for musculoskeletal joint disabilities. Specifically, the General Counsel held that where the medical evidence shows that a veteran has arthritis of a joint and where the diagnostic code applicable to his/her disability is not based upon limitation of motion, a separate rating for limitation of motion under diagnostic code 5003 may be assigned, but only if there is additional disability due to limitation of motion. See VAOPGCPREC 23-97 (July 1, 1997). In the present case, there is no evidence of limitation of motion of the left knee even to a noncompensable level. In the present case, the medical evidence of record reveals that the veteran has some x-ray evidence of either arthritis or chondromalacia of the left knee. The evidence of record reveal that the veteran has range of motion of the left knee of extension to 0 degrees and flexion to 120 degrees. In order to warrant a compensable disability rating for limitation of motion of the left knee the veteran would have to have extension limited to 10 degrees or flexion limited to 45 degrees. 38 C.F.R. Part 4, § 4.71a, Diagnostic Codes 5260, 5261 (2002). Even if the range of motion findings from earlier VA examinations were used, with flexion being only to 90 degrees, the veteran would not warrant a compensable disability rating for limitation of motion of the left knee. The preponderance of the evidence is against the veteran's claim for an increased rating for his service connected left knee. The evidence of record reveals a fairly normal range of motion of the left knee, with no instability, swelling, or deformity and only minimal x-ray evidence of arthritis. As such, an increased rating is denied. In DeLuca v. Brown, 8 Vet. App. 202 (1995), The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") held that 38 C.F.R. §§ 4.40, 4.45, 4.59 (2002) were not subsumed into the diagnostic codes under which a veteran's disabilities are rated. Therefore, the Board has to consider the "functional loss" of a musculoskeletal disability under 38 C.F.R. § 4.40 (2002), separate from any consideration of the veteran's disability under the diagnostic codes. DeLuca, 8 Vet. App. 202, 206 (1995). Functional loss may occur as a result of weakness or pain on motion of the affected body part. 38 C.F.R. § 4.40 (2002). VA regulations § 4.40 describes functional loss and indicates that: Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2002). The factors involved in evaluating, and rating, disabilities of the joints include: weakness; fatigability; incoordination; restricted or excess movement of the joint; or, pain on movement. 38 C.F.R. § 4.45 (2002). Specifically, § 4.45 states that : As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.45 (2002). These factors do not specifically relate to muscle or nerve injuries independently of each other, but rather, refer to overall factors which must be considered when rating the veteran's joint injury. DeLuca, 202 Vet. App. 202, 206-07 (1995). VA regulations also specifically address painful motion and state: With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2002). The appellant's complaints of discomfort and pain have been considered and have been taken into account in the assignment of the 10 percent evaluation for his service-connected left knee disorder. The Board has considered the veteran's claim for an increased rating for his musculoskeletal disability under all appropriate diagnostic codes. As stated above, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2002). This has been accomplished in the present case as the veteran is assigned a 10 percent disability rating for his left knee disorder. Moreover, although the Board is required to consider the effect of pain when making a rating determination, which has been done in this case, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board is required to consider the effect of pain and weakness when rating a service connected disability. 38 C.F.R. §§ 4.40, 4.45 (2002); DeLuca v. Brown, 8 Vet. App. 202 (1995). However, in Sanchez-Benitez v. West, the Board discussed the veteran's disability and stated that the "nature of the original injury has been reviewed and the functional impairment that can be attributed to pain or weakness has been taken into account. 38 C.F.R. §§ 4.40, 4.45." The court held that "this discussion by the Board, with direct citation to sections 4.40 and 4.45, satisfies any obligation of the BVA to consider these regulations while rating the appellant's" disability. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). ORDER An increased rating for arthritis of the left knee is denied. REMAND In March 2001 the Board remanded the veteran's claim for an increased rating for hypertension to the RO for another VA examination to be conducted. In December 2001 a VA examination was conducted. However, this examination was inadequate for rating purposes as it did not contain the information necessary. The December 2001 VA examination did not contain any information related to METs and did not answer the questions posed to the examiner by the Board. The RO did not take any steps to remedy the deficiencies in the examination report. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 1999 the veteran filed a notice of disagreement with the denial of service connection for an enlarged heart secondary to his service connected hypertension. The RO must issue a Statement of the Case on this issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) (holding that, where notice of disagreement is filed with claim and no statement of the case has been issued, Board should remand, not refer, that issue to the RO to issue statement of the case). Finally, on a VA Form 646 dated February 2003, the veteran representative has raised the issue of entitlement to an extra-schedular rating for the veteran's service connected hypertension under 38 C.F.R. § 3.321(b)(1) (2002). The representative asserts that the case is an exceptional case were the schedular evaluations are inadequate. The RO needs to consider this. This case is REMANDED for the following: 1. The veteran should be asked to provide a list containing the names of all health care professionals and/or facilities (private and governmental) where he has been treated for his service-connected hypertension disabilities since March 2001. Subsequently, and after securing the proper authorizations where necessary, the RO should make arrangements in order to obtain all the records of treatment from all the sources listed by the veteran which are not already on file. 2. The veteran should be accorded the appropriate VA examination for hypertension and heart disease. The report of examination should include a detailed account of all manifestations of the hypertension and heart disease found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Specifically the appropriate testing to determine the veteran's MET workload and ejection fraction needs to be conducted. Also a chest x-ray, electrocardiogram, and echocardiogram need to be conducted as required by the rating criteria at 38 C.F.R. § 4.104, Diagnostic Code 7007 (2000). The examining physician is requested to review the medical evidence of record and indicate whether the veteran's service-connected cardiovascular disability is more properly defined as "hypertensive vascular disease" or "hypertensive heart disease." The examining physician should indicate if the veteran suffers from an "enlarged heart" and if so, if this is related to the veteran's service connected hypertension. The claims folder and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. The examining physician should provide complete rationale for all conclusions reached. 3. Thereafter, the RO should readjudicate the claim for an increased rating for hypertension. In this regard the RO should also specifically adjudicate the veteran's assertion that he warrants an extra-schedular rating for his service connected hypertension under 38 C.F.R. § 3.321(b)(1) (2002). If the benefit sought on appeal remains denied, the appellant and the appellant's representative, if any, should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. 4. The RO should issue a Statement of the Case on the issue of entitlement to service connection for an enlarged heart secondary to service connected hypertension. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ______________________________________________ BETTINA S. CALLAWAY Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.