Citation Nr: 0300444 Decision Date: 01/09/03 Archive Date: 01/28/03 DOCKET NO. 01-10 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased disability rating for service-connected arthritis of the right knee, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD K. Gallagher, Counsel INTRODUCTION The veteran served on active duty from June 1945 to November 15, 1957, and from November 18, 1957, to July 1958. This matter comes before the Board of Veterans' Appeals (Board) from a September 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied an increased disability rating service-connected arthritis of the right knee, currently rated as 10 percent disabling. FINDINGS OF FACT The service-connected arthritis of the right knee is manifested by limitation of motion from 0 degrees extension to 90 degrees of flexion, limited by pain, and with an estimated additional motion loss of 20 to 25 degrees in flexion during flare-ups of knee pain. CONCLUSION OF LAW The criteria for an increased rating for arthritis of the right knee have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5257, 5260, 5261 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist While this case was being developed at the RO, the Veterans Claims Assistance Act of 2000 (VCAA) was enacted in November 2000, which emphasized VA's obligation to notify claimants what information or evidence is needed in order for a claim to be substantiated and which affirmed VA's duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 1991 & Supp. 2002). The law applies to all claims filed on or after the date of its enactment or, as in this case, filed before the date of enactment and not yet subject to a final decision as of that date because of an appeal filed which abated the finality of the decision appealed. 38 U.S.C.A. § 5107, Note (West Supp. 2002). VA has promulgated regulations implementing the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). These regulations, likewise, apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by VA as of that date, except as specified. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). In this case, VA's duties have been fulfilled to the extent possible. VA must notify the claimant of evidence and information necessary to substantiate his claim and inform him whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West Supp. 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, the RO specifically notified the veteran of the provisions of the VCAA in a July 2001 letter; specifically, the veteran was advised that the RO would obtain VA treatment records and any adequately described private treatment records on his behalf, with proper authorization, and would also seek any pertinent government records which he might identify. Moreover, in the November 2001 statement of the case, the RO provided the text of the new evidence-development regulation, 38 C.F.R. § 3.159, in its entirety. All evidence and records identified by the veteran as relevant to his claim have been obtained for review. He and his representative were notified of the rating criteria involved for a higher rating in this case, and he has submitted private medical evidence in support of the claim. VA afforded the veteran a VA examination in relation to his claim. It thus appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for an equitable disposition of this appeal. See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). Accordingly, the Board concludes that, with respect to this claim, all possible development has been conducted and all notification provided. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (noting that the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims); see also 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). Increased Disability Rating For Right Knee Arthritis. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. 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; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In this case, service connection and a 10 percent rating have been in effect for arthritis of the right knee since October 1999. The 10 percent rating has been assigned under the criteria for rating the degree of disability resulting from traumatic arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under 38 C.F.R. § 4.71a, Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Pursuant to Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of- motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A 0 percent rating is warranted for limitation of leg flexion when it is limited to 60 degrees, a 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted when it is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 0 percent rating is warranted when leg extension is limited to 5 degrees, a 10 percent rating is warranted when it is limited to 10 degrees, a 20 percent rating is warranted when it is limited to 15 degrees, a 30 percent rating is warranted when it is limited to 20 degrees, a 40 percent rating is warranted when it is limited to 30 degrees, and a 50 percent rating is warranted when it is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A knee impairment with recurrent subluxation or lateral instability is rated 20 percent when moderate and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. In precedent opinions, the VA General Counsel has held that separate ratings may be assigned for arthritis with limitation of motion of a knee (Diagnostic Codes 5003-5010) and for instability of a knee (Diagnostic Code 5257). VAOPGCPREC 9-98 (Aug. 14, 1998) and 23-97 (July 1, 1997). Normal range of motion of the knee for VA rating purposes is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, PLATE II. Range of motion of the right knee in this case has been noted as follows on VA and private medical records on the dates indicated: Extension Flexion January 2000 VA: within a few degrees of full 115 degrees June 2000 private: 0 degrees 110 degrees October 2000 VA: 0 degrees 105 degrees Examiners noted diagnoses of osteoarthritis of the right knee and degenerative joint disease of the right knee. The veteran was treated with injections to his right knee for treatment of pain. An August 2000 private examiner noted that these injections had helped the veteran. An August 2000 VA examiner noted that the veteran was feeling better on the right side following a series of three injections. However, on a December 2000 VA examination report, the examiner noted that the veteran complained of significant pain in the right knee with flexion. A July 2001 private medical report reflected that the veteran underwent a right knee arthroscopy and two compartment debridement. Nine days after this surgical procedure, a private physician noted that the veteran was doing well and had marked relief of his pain. His range of motion was 30 degrees extension and 90 degrees flexion. The veteran was provided with a temporary total rating for a period of convalescence following this surgery from July to September 2001. 38 C.F.R. § 4.30. An August 2001 private examination report reflected range of motion of the right knee of -10 degrees of extension to 98 degrees of flexion. Considerable pain was noted along the medial and lateral joint lines of the right knee. On an August 2001 VA examination, the examiner noted that the there was mild effusion of the right knee and tenderness laterally and medially. Range of motion was 0 degrees extension to 90 degrees of flexion, limited by pain. Tests for instability and laxity of the right knee were negative. The examiner estimated that the veteran would have an additional motion loss of 20 to 25 degrees in flexion during flare-ups of knee pain. The evidence of record does not show that limitation of motion of the right knee meets the requirements for a compensable rating under the criteria for rating limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Moreover, there is no evidence of instability of the right knee in this case to warrant a rating separate from that assigned for the limitation of motion resulting from the service-connected arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5257; VAOPGCPREC 9-98 (Aug. 14, 1998) and 23-97 (July 1, 1997). Although the veteran contended in his substantive appeal that VA did not factor in the pain and instability he has with his right knee, the August 2001 VA examination report reflects that the examiner did provide an estimate of the degree of added limitation of motion that the veteran would experience during flare-ups of knee pain and all tests for instability and laxity of the right knee were negative on examination. Moreover, the veteran was noted to be experiencing considerable pain during the August 2001 private examination, and limitation of motion shown on that examination report did not meet the rating criteria for a rating higher than 10 percent. Accordingly, the Board concludes that the 10 percent rating assigned under the criteria which provide a 10 percent rating where there is limitation of motion due to arthritis that is not to a compensable degree under the criteria for limitation of motion is the appropriate rating in this case, and the criteria for an increased disability rating have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5257, 5260, 5261 (2002). In so concluding, the Board notes that there is no evidence to show that the degree of disability resulting from the right knee arthritis more nearly approximates the next higher rating even during flare-ups of knee pain when it is estimated that flexion would be limited at most to 65 degrees. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5260 (providing a 20 percent rating when flexion is limited to 30 degrees). The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER An increased disability rating for service-connected arthritis of the right knee, currently rated as 10 percent disabling, is denied. WAYNE M. BRAEUER Member, 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.