Citation Nr: 0626136 Decision Date: 08/22/06 Archive Date: 08/31/06 DOCKET NO. 05-14 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a compensable disability rating for patellofemoral syndrome of the right knee. ATTORNEY FOR THE BOARD Tzu Wang, Associate Counsel INTRODUCTION The veteran served on active duty from June 1998 to May 1999. This case comes before the Board of Veterans' Appeals (Board) from a June 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDING OF FACT The veteran's right knee disability, patellofemoral syndrome, is manifested by no more than range of motion from 0 degrees of extension to 140 degrees of flexion, with subjective complaints of pain and slight instability. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the veteran, the criteria for a 10 percent evaluation for patellofemoral syndrome of the right knee have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.951, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). Proper VA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the evidence of record -- service medical records, a VA examination report, and lay statements -- is adequate for determining whether the criteria for a higher disability rating have been met. Accordingly, the Board finds that no further assistance to the veteran in acquiring evidence is required by statute. 38 U.S.C.A. § 5103A. During the pendency of this appeal, the U.S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. In the present appeal, a June 2006 letter provided the veteran with notice of the type of evidence necessary to establish an effective date, if a higher disability rating was granted on appeal. The veteran did not respond, eventhough that letter was sent by the RO after the initial AOJ adjudication, any defect in the notice required by Dingess/Hartman with respect to the effective date of the rating for his right knee disability will be addressed by the AOJ when effectuating this award. There can be no possibility of any prejudice to the claimant under the holding in Dingess/Hartman. Moreover, in a May 2004 letter, the RO satisfied the four elements delineated in Pelegrini, supra. Under these circumstances, the Board concludes that VA has satisfied its duty to notify the veteran and, therefore, it is unnecessary to remand this case to the AOJ, this is particularly so here where the Board is taking action favorable to the veteran by granting a 10 percent rating. See Bernard v. Brown, 4 Vet. App. 384 (1993); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The veteran has not alleged any prejudice with respect to the timing of the notification, nor has any been shown. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Sutton v. Brown, 9 Vet. App. 553 (1996). Analysis The veteran contends that a compensable disability rating should be assigned for his right knee to reflect more accurately the severity of his symptomatology. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making a disability evaluation. 38 C.F.R. § 4.1. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Furthermore, consideration should also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The veteran's right knee is currently rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5260. A 10 percent rating is warranted for limitation of motion when flexion is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A noncompensable rating is warranted when leg extension is limited to 5 degrees and a 10 percent rating is warranted when it is limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Standard range of motion of a knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for impairment of the knee, involving recurrent subluxation or lateral instability, a maximum 30 percent rating is assigned for severe impairment, a 20 percent rating for moderate impairment, and a 10 percent rating for slight impairment. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The June 2004 VA examiner found that the veteran's right knee disability is manifested by no more than range of motion from 0 degrees of extension to 140 degrees of flexion. The veteran complained of occasional pain, swelling, and buckling of the right knee. The veteran also complained of occasional problems with kneeling and squatting. On examination, the veteran's gait and posture were within normal limits. No pain was noted on palpitation. There was no crepitus or effusion. No additional loss of range of motion from pain, weakness, lack of endurance, or incoordination was noted. X- rays of the right knee were normal without any findings of fracture, dislocation, or degenerative disease. The Board observes that extension of 0 degrees for the right knee warrants only a noncompensable rating under Diagnostic Code 5261. Similarly, 140 degrees of flexion also fail to provide for a compensable rating under Diagnostic Code 5260. The Board also considered rating the veteran's right knee disability under Diagnostic Code 5257, which pertains to subluxation or lateral instability. Although it appears that the VA examiner did not perform objective tests for instability or laxity of ligaments or subluxation, the examiner did note that the veteran complained of the right knee buckling on him and problems with kneeling and squatting. Thus, resolving the benefit of doubt in the veteran's favor, the Board finds that the veteran's statements, along with consideration of 38 C.F.R. §§ 4.40, 4.45, 4.59, approximate a 10 percent disability rating, and no more, under Diagnostic Code 5257. A higher rating is not available under Diagnostic Codes 5256 or 5262, since the veteran has not been shown to have ankylosis or nonunion of the tibia and fibula for either knee. Consequently, the Board concludes that the preponderance of the evidence is against a disability rating in excess of 10 percent for the veteran's right knee. Finally, the disability picture is not so exceptional or unusual as to warrant a referral for an evaluation on an extraschedular basis. For example, there is no competent evidence that the veteran's right knee disability has resulted in frequent hospitalizations or caused marked interference in his employment. The Board is therefore not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2005). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Thus, resolving the benefit of doubt in the veteran's favor, the Board finds that the veteran's right knee disability, patellofemoral syndrome, warrants a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5257. ORDER An increased rating of 10 percent for patellofemoral syndrome is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs