Citation Nr: 0801161 Decision Date: 01/11/08 Archive Date: 01/22/08 DOCKET NO. 05-34 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for weakness of the posterior capsule of the right knee with degenerative arthritis and chondromalacia patella. 2. Entitlement to a rating in excess of 10 percent for weakness of the posterior capsule of the left knee with degenerative arthritis and chondromalacia patella. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The veteran served on active duty from December 1956 to August 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the above claims. In his October 2005 substantive appeal, the veteran reported a loss of sensitivity in his legs and suggested that this was caused by nerves in his back. He also stated that he had been unemployable for the past one and a half years. These matters are referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran's right knee range of motion is from 0 degrees of extension to 130 degrees of flexion. 2. The veteran's left knee range of motion is from 0 degrees of extension to 130 degrees of flexion. 3. The objective medical evidence fails to show knee instability or subluxation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for weakness of the posterior capsule of the right knee with degenerative arthritis and chondromalacia patella have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5257, 5260, 5261 (2007). 2. The criteria for a rating in excess of 10 percent for weakness of the posterior capsule of the left knee with degenerative arthritis and chondromalacia patella have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, DCs 5257, 5260, 5261 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) impose specific notice requirements on VA. (codified in pertinent part at 38 U.S.C.A § 5103, 5103A (West 2002)). Specifically, proper VCAA notice must inform the claimant of any information that is 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 his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1) (2007). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). VCAA notice must be provided prior to the initial unfavorable adjudication by the RO. Id. at 120. With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir., 2004). Required notice was completed by a letter dated in April 2004, which informed the veteran of all four elements required by the Pelegrini II Court as stated above. In light of the denial of the veteran's claims, no effective date can be assigned, so there can be no possibility of prejudice to the veteran under the holding in Dingess/Hartman. Regarding the duty to assist, the RO has obtained the veteran's VA treatment records and there is no indication that the veteran has ever sought private treatment. The veteran was also provided with a VA examination in September 2004. Although the examiner noted that the claims folder was not available for review, he stated that he did have a VA examination report dated in June 2003 for review. This examination report comprises the vast majority of the relevant evidence associated with the claims folder. Accordingly, remand for a new examination in not required. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the veteran by VA would be capable of substantiating his claims. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the veteran in adjudicating this appeal. II. Increased Ratings Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2007). Otherwise, the lower rating will be assigned. Id. While the veteran's entire history is reviewed when assigning 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. Francisco v. Brown, 7 Vet. App. 55 (1994). A recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a) (West 2002 & Supp. 2007). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The veteran submitted a claim for an increased rating for his knee disability in March 2004. He contends that his service- connected left and right knee disabilities are worse then they are currently rated. The veteran is currently rated at 10 percent disabled for each knee under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010- 5261. Degenerative or traumatic arthritis established by X- ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joint involved. 38 C.F.R. § 4.71a, DC 5003 and 5010. When there is arthritis and at least some limitation of motion, but the limitation of motion would be rated noncompensable under a limitation of motion code, a 10 percent rating may be assigned for each affected major joint or group of minor joints. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Where the veteran has limited motion, 38 C.F.R. § 4.71a DC 5260 and 5261 provide ratings for limitation of flexion and extension of the knee, respectively. Under DC 5260, a noncompensable rating is assigned when flexion is limited to 60 degrees, a 10 percent rating is assigned when flexion is limited to 45 degrees, and a 20 percent rating is assigned when flexion is limited to 30 degrees. Under DC 5261, a noncompensable rating is assigned when extension is limited to 5 degrees, a 10 percent rating is assigned when extension is limited to 10 degrees, and a 20 percent rating is assigned when extension is limited to 15 degrees. The veteran underwent a VA examination in September 2004, at which time he reported that he his knees "tend to pop," and that he has pain in both knees, some difficulty squatting, limited climbing, and stiffness on driving. The examiner noted that his examination was much the same as it had been in June 2003 insofar as the veteran still had a full range of motion, no loss of motion because of pain, and no weakness, fatigue, or incoordination. The examiner reported that the veteran had a range of motion of 0 to 130 degrees in both knees. The veteran's medial joint line was +2 tender on palpation over both knees, with no pain on compression of the patella or lateral motion of the patella. There was good stability of the knees. X-rays revealed some narrowing of the articular cartilage space of the patellofemoral joint and some narrowing of the medial joint line on the right knee. The examiner diagnosed the veteran with bilateral chondromalacia and mild to moderate degenerative arthritis of the medial compartment of the right knee. He stated that the veteran had some functional impairment of the knees, recommending that the veteran refrain from squatting, excessive climbing, and prolonged (more than a half hour) standing or walking without rest. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the veteran. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). However, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. Id. Even taking pain on motion into consideration, as required by DeLuca, the veteran has motion of his knees from 0 to 130 degrees, with no loss of motion because of pain and weakness, fatigue, or incoordination. These range of motion findings do not approach even the criteria for a noncompensable rating under DC 5260 or DC 5261. The current 10 percent ratings appear to be based upon painful motion and functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Therefore, a rating higher than 10 percent for the veteran's arthritis of the left and right knees is not appropriate. To assign two, separate compensable ratings based on painful motion under two separate diagnostic codes (i.e., under Diagnostic Codes 5260 and 5261) would be in violation of the rule of pyramiding. See 38 C.F.R. § 4.14; VAOPGCPREC 9-04. In addition to the ratings based on limitation of motion, a separate rating may be assigned for instability of the knee. See VAOPGCPREC 23-97. Under Diagnostic Code 5257, a 10 percent rating is assigned slight recurrent subluxation or lateral instability, a 20 percent rating is assigned for moderate recurrent subluxation or lateral instability, and a 30 percent rating is assigned for severe recurrent subluxation or lateral instability. The schedule of ratings, does not define the terms "slight," "moderate," and "severe;" rather than applying a mechanical formula to make a determination, the Board evaluates all of the evidence such that decisions are "equitable and just." 38 C.F.R. § 4.6 (2007). Good stability of the knees was noted on the September 2004 VA examination. Additionally, the veteran has denied wearing knee braces. The objective medical evidence does not show any subluxation or lateral instability of either knee. Therefore, a separate, compensable rating is not warranted under DC 5257. For the reasons and bases provided above, the preponderance of the evidence in this case is against the veteran's claim for a rating in excess of 10 percent for either the right or left knee. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). Accordingly, the veteran's claim for an increased rating for his right and left knee disabilities is denied. ORDER Entitlement to a rating in excess of 10 percent for weakness of the posterior capsule of the right knee with degenerative arthritis and chondromalacia patella is denied. Entitlement to a rating in excess of 10 percent for weakness of the posterior capsule of the left knee with degenerative arthritis and chondromalacia patella is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs