Citation Nr: 0506471 Decision Date: 03/08/05 Archive Date: 03/21/05 DOCKET NO. 02-20 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial increased rating in excess of 10 percent for degenerative joint disease of the left knee. 2. Entitlement to an initial increased rating in excess of 10 percent for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: Antonio E. Bendezu, Attorney at Law ATTORNEY FOR THE BOARD Raymond L. Liu, Associate Counsel INTRODUCTION The veteran, who is the appellant in this case, served on active duty from November 1955 to October 1959; from March 1961 to September 1965; and from September 1965 to June 1971. This matter arises before the Board of Veterans' Appeals (Board) from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which granted service connection for degenerative joint disease in the left knee, secondary to a service- connected lumbosacral strain with an initial rating of 10 percent; and granted service connection for degenerative joint disease in the right knee, secondary to a service- connected lumbosacral strain with an initial rating of 10 percent. FINDINGS OF FACT 1. The veteran's service-connected left knee disability is currently manifested by weakness and fatigability with pain; with noted age appropriate range of motion with flexion to 90 degrees and normal extension to 0 degrees; with no signs of joint effusion; with X-rays revealing degenerative joint disease. 2. The veteran's service-connected right knee disability is currently manifested by weakness and fatigability with pain; with noted age appropriate range of motion with flexion to 90 degrees and normal extension to 0 degrees; with no signs of joint effusion; with X-rays revealing degenerative joint disease. CONCLUSION OF LAW 1. The criteria for an initial rating increase in excess of 10 percent for the veteran's service-connected left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5010 (2004). 2. The criteria for an initial rating increase in excess of 10 percent for the veteran's service-connected right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5010 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Compliance with the Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), was enacted. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Among other things, the VCAA amended 38 U.S.C.A. § 5103 to clarify VA's duty to notify claimants and their representatives of any information that is necessary to substantiate the claim for benefits. The VCAA also created 38 U.S.C.A. § 5103A, which codifies VA's duty to assist, and essentially states that VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. The claimant must be given proper notice and an opportunity to respond. Implementing regulations for the VCAA were subsequently enacted, which were also made effective November 9, 2000, for the most part. See 38 C.F.R. §§ 3.102, 3.159 (2004). The intended effect of the implementing regulations was to establish clear guidelines consistent with the intent of Congress regarding the timing and scope of assistance VA will provide to claimants who file a claim for benefits. 66 Fed. Reg. 45,620 (Aug. 29, 2001). Accordingly, both the VCAA and the implementing regulations are applicable in the present case, and will be collectively referred to as "the VCAA." To comply with the aforementioned VCAA requirements, the RO must satisfy the following four requirements. First, the RO must inform the claimant of the information and evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002) and 38 C.F.R. § 3.159(b)(1) (2004). In a January 2004 letter, the RO informed the veteran of the evidence necessary to prove his claims. Specifically, the RO informed the veteran that to establish entitlement, he will need to obtain medical records, treatment reports, and employment examination records. The RO also informed him that he will need to obtain evidence to demonstrate the level of each current disability's severity and to relate each to an injury, disease, or event during service. Second, the RO must inform the claimant of the information and evidence the VA will seek to obtain on his behalf. See 38 U.S.C.A. § 5103 and 38 CFR § 3.159(b)(1) (2004). In its January 2004 letter, the RO informed the veteran that the RO would seek to assist him in obtaining evidence such as medical records, employment records, and records kept by other federal agencies. Third, the RO must inform the claimant of the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103 and 38 CFR § 3.159(b)(1) (2004). In the January 2004 letter, the RO informed the veteran to provide information about available records and evidence to enable the RO to request and obtain them from the agency or person who has them. Finally, the RO must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. See 38 U.S.C.A. § 5103 and 38 CFR § 3.159(b)(1) (2004). The January 2004 letter instructed the veteran to inform the RO of any person or agency who may have additional evidence to support his claim. In view of the development that has been undertaken for these claims, further development is not needed to comply with the VCAA. The appellant has been informed of the information and evidence needed to substantiate his claims, and he has been made aware of how VA would assist him in obtaining evidence and information. He has not identified any additional, relevant evidence that has not been requested or obtained. For the aforementioned reasons, there is no reasonable possibility that further assistance would aid in the substantiation of the claims. In short, the requirements under the VCAA have been met. Accordingly, there is no potential prejudice to the veteran for failure to develop the claims. Therefore, the Board will proceed to consider the merits of the appeal. Factual Background In May 2002, a VA physician reviewed the veteran's medical records, and indicated that it appeared that the veteran's knee problems were more likely than not secondary to his service-connected back problems. The physician cited the veteran's lack of a history or any accident or injury to the knees and remarked that the back problems may have led to an altered stance and possibly an altered gait that would have led to the knee problems as the joints would bear the brunt of ambulation. Outpatient treatment records from the Omaha VA Medical Center in 2002 indicated continued complaints of pain in the knees. In November 2002, it was noted that the veteran's physician activity was limited and that he used a cane to ambulate. A VA general medical examination was conducted in September 2004 with a review of the C-file. At the examination, the veteran stated that his right knee was symptomatic with a constant pain of 7 /10, with 10 being the most severe. Symptoms included lack of endurance, and fatigability. The veteran indicated that his right knee often caused him to frequently awake from his sleep when his knee became cold. His right knee pain also felt worse when walking distances greater than 1 block. Methods to lesson the pain included local application of heat, avoidance of overuse, and restriction of his physical activities. The veteran indicated that he was taking piroxicam medication daily to alleviate the pain. The veteran indicated that he had discontinued all domestic chores and has to sit on a stool when he showers in order to wash his feet because of the pain he has in the knees. The examiner remarked that the symptoms of his right knee would likely have an adverse effect on both physical and sedentary types of employment. The veteran's left knee was also noted to be painful, limiting his ability to walk more than a block. The left knee has a constant pain of 5/10 with fatigability and a lack of endurance. The veteran also takes piroxicam for the pain in the left knee as well and treats his left knee using the same methods as he treats his right. The examiner observed that the veteran walked with an erect posture, but noted that he clearly walked with an antalgic gait, carrying a cane in his right hand. Upon examination, the veteran was observed to have grossly full range of motion on four extremities. Examination of the knees revealed full extension of 0 degrees and flexion of 95 degrees, which the examiner remarked was age appropriate. Although the examiner noted that the veteran had to use his hands to perform a full extension, which took slower than the average person, he was observed to easily be able to extend the lower legs to full extension of 0 degrees during other parts of the examination. There was a negative patellar inhibition test; negative Lachman's; negative McMurray's test; and the anterior cruciate ligaments, medical collateral ligaments, and lateral collateral ligaments were intact. There was no redness, no local warmth, and no evidence of effusion. Law and Analysis In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) distinguished between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection and a claim for an increased rating of a service- connected condition. In Fenderson, the Court agreed that the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.") was not applicable where the veteran was expressing dissatisfaction with the initial rating assigned. In the present case, the veteran is expressing dissatisfaction with the initial rating assigned following the grant of service connection for his claimed disabilities in May 2002. Therefore, all of the evidence following the grant of service connection (not just the evidence showing the present level of disability) must be considered in evaluating the veteran's claim. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2004). Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2004). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from the service-connected disability. 38 C.F.R. § 4.1. (2004). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2004). A thorough evaluation of a musculoskeletal or orthopedic disability for rating purposes requires consideration of any functional loss due to pain, incoordination, weakness, or fatigability. 38 C.F.R. §§ 4.40, 4.45 (2003); DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, when the claimant presents subjective complaints of continuous joint pain, medical determinations should be made regarding whether the affected joints exhibit pain on use, weakened movement, excess fatigability, incoordination, or any other disabling symptoms. Specifically, a medical opinion should be presented addressing the question of whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. These determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups beyond that clinically demonstrated. The May 2002 rating decision granted service connection for degenerative joint disease in the left knee and right knee and assigned a disability rating of 10 percent for each knee, utilizing Diagnostic Code 5010. Under that Diagnostic Code, arthritis due to trauma and substantiated by X-rays is rated as degenerative arthritis under Diagnostic Code 5003. In addition to Diagnostic Codes 5010 and 5003, degenerative arthritis is also rated based on the limitation of flexion and extension, respectively, under Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, a 10 percent rating is assigned when flexion is limited to 45 degrees. Higher evaluations may be assigned for greater degrees of limitation of flexion. Under Diagnostic Code 5261, a 10 percent rating is assigned if extension of the leg is limited to 10 degrees. Higher evaluations are warranted for higher degrees of limitation of extension. In this case, the veteran does not have compensable limitation of motion in either knee. At his September 2004 examination, the veteran's range of motion in his legs and knees was found to be normal with noted age appropriate flexion at 90 degrees and normal full extension at 0 degrees. There was some fatigability and weakness in the knees, but there was no noted joint effusion or other objective manifestation disability. The anterior cruciate ligaments, medial collateral ligaments, and lateral collateral ligaments were intact. The September 2004 examination noted that the record identified X-rays of both knees that found degenerative joint disease with recorded subjective pain. Therefore, the knees are non-compensable under Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5003, when the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is applicable for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The September 2004 examination and prior outpatient records have shown that the veteran's left and right knees are affected by degenerative joint disease with complaints of pain. However, in order to meet the criteria for a rating in excess of 10 percent, it must be shown that he has occasional incapacitating exacerbations due to arthritis. The record contains no such evidence. See Diagnostic Code 5003. The record does not show, nor does the veteran contend, that his knee disorders are manifested by recurrent subluxation or lateral instability that would be ratable under Diagnostic Code 5257. He does not have the symptoms of knee disability that would entitle him to a rating under other diagnostic codes. In the absence of clinical findings that the veteran has compensable limitation of motion in his knees or occasional incapacitating episodes due to arthritis, or recurrent lateral instability or subluxation, the Board concludes that the criteria for a schedular rating in excess of 10 percent for degenerative joint disease in the left and right knee have not been met. ORDER 1. Entitlement to an initial increased rating for degenerative joint disease in the left knee in excess of 10 percent is denied. 2. Entitlement to an initial increased rating for degenerative joint disease in the right knee in excess of 10 percent is denied. ____________________________________________ G.H. Shufelt Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs