Citation Nr: 0809813 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-06 453A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of 20 percent for residuals, left knee injury, status post anterior cruciate ligament repair. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Douglas J. Boorstein, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from October 1997 to June 1998 and from March 2000 to March 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO), which assigned a 10 percent rating for the veteran's left knee disability, characterizing it as status post, residuals left knee condition with scars. Subsequent to that rating decision, the RO has recharacterized the veteran's left knee disability multiple times. Most recently, in May 2005, a Decision Review Officer recharacterized the veteran's left knee disability as residuals, left knee injury, status post anterior cruciate ligament repair and assigned a 20 percent rating. In March 2005, the veteran testified before a decision review officer. A copy of the transcript is of record. In his March 2005 substantive appeal, the veteran requested a hearing at a local VA office before a member of the Board. A hearing was scheduled at the local RO for February 2008 and the veteran was given notice of the hearing by letter dated in December 2007. The veteran failed to appear for his scheduled hearing, and there is no record that a request for another hearing was ever made. Without good cause being shown for the failure to appear, no further hearing can be scheduled and appellate review may proceed. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The residuals, left knee injury, status post anterior cruciate ligament repair is manifested by limitation of extension to 15 degrees and limitation of flexion to 110 degrees, with limitation additionally limited by pain to 90 degrees. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for residuals, left knee injury, status post anterior cruciate ligament repair have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45. 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. 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. Under Diagnostic Code (DC) 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5257 (other impairment of the knee), a 10 percent disability evaluation requires slight recurrent subluxation or lateral instability. A 20 percent evaluation requires moderate recurrent subluxation or lateral instability. A 30 percent evaluation requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5260, limitation of flexion of the knee to 60 degrees warrants a noncompensable evaluation, limitation of flexion to 45 degrees warrants a 10 percent rating, limitation of flexion to 30 degrees warrants a 20 percent evaluation and limitation of flexion to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension of the knee to 5 degrees warrants a noncompensable evaluation, limitation of extension of the knee to 10 degrees warrants a 10 percent evaluation, limitation of extension to 15 degrees warrants a 20 percent evaluation, and limitation of extension to 20 degrees warrants a 30 percent evaluation. Limitation of extension of the knee to 30 degrees warrants a 40 percent evaluation and limitation of extension of the knee to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Schedule provides that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion. 38 C.F.R. § 4.71a, Plate II. VA's General Counsel has held that a veteran who has arthritis and instability of the knee could receive separate ratings under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23- 97 (1997); 62 Fed. Reg. 63,604 (1997). When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero-percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98 (1998); 64 Fed. Reg. 52,376 (1999), the VA General Counsel further explained that, when a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. In the alternative, even if the veteran has full range of motion in the knee, a compensable rating may be granted by virtue of 38 C.F.R. § 4.59 and DC 5003. In VAOPGCPREC 9-2004 (2004); 69 Fed. Reg. 59,990 (2004), the VA General Counsel held that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion), and Diagnostic Code 5261 (leg, limitation of extension). Where a veteran has both a limitation of flexion, and limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Analysis The veteran's left knee disability is rated as 20 percent disabling. After a review of the evidence in conjunction with the applicable rating criteria, the Board finds that the veteran's knee disability is appropriately rated and the criteria for an increased rating are not met. Under Diagnostic Code 5003, no higher rating is warranted. As discussed above, where arthritis results in limitation of motion, the veteran's knee should be rated based on that limitation of motion. As discussed below, the rating based on the limitation of motion is appropriate, and therefore, the veteran is not entitled to a higher rating under this provision. An increased rating is not warranted under the provisions of Diagnostic Code 5260 or 5261 either. On a VA examination in March 2004, the veteran's range of motion was not affected by habitus or other factors. The veteran had active flexion from 0 to 90 degrees. An additional VA examination was performed in March 2005. On this examination, the examiner noted that the veteran's left knee had active flexion to 90 degrees, with passive flexion to 110 degrees with pain. The veteran's left knee lacked 15 degrees of extension. Based on the foregoing, a rating in excess of 20 percent is not warranted based on the veteran's limitation of motion in the left knee. See Diagnostic Codes 5260 and 5261. The Board has considered whether a higher rating may be assigned on the basis of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca, supra. Even though in March 2004, the examiner noted that the veteran's range of motion may be additionally limited with exacerbations, which include pain, fatigue and lack of endurance, the veteran had flexion to 90 degrees. In March 2005, although the veteran has reported pain in his knee on flexion, he still had active flexion to 90 degrees and passive flexion to 110 degrees. Additionally, with regard to extension, the veteran's disability picture is not further limited by pain. In 2005, the examiner noted that the veteran's left knee had no changes on repeated or resisted motion, and no redness, swelling, effusion, or warmth. As such, the currently assigned 20 percent rating adequately compensates him for his limitation of motion. Thus, an increased rating is not warranted based upon DeLuca. With regard to DC 5257, the criteria for a rating based on instability of the left knee are not met. On a Military Evaluation Board examination performed in December 2003, the veteran was found to have negative Lachmans, negative posterior drawer, negative pivot shift, with no evidence of varus or valgus instability. The veteran's knee was stable with varus and valgus stress. Although the veteran subjectively reported instability his knee to the examiner in March 2005, the examiner nevertheless found that he did not have any episodes of recurrent dislocation or subluxation. The veteran's knee collaterals were stable to varus and valgus stress, his knee cruciates were stable with negative Lachmans and drawers tests, and his meniscus was stable with negative McMurray's test. There is thus no objective evidence of record showing left knee instability. Although the Board has considered the veteran's statements regarding his knee instability, the Board attaches greater weight to the clinical findings of medically trained objective examiners. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). Thus, the preponderance of the evidence is against a finding that the veteran experiences instability of his left knee. Finally, the Board notes that for either knee, there is no evidence of dislocated semilunar cartilage with frequent episodes of locking or effusion; of semilunar cartilage removal with symptoms; of ankylosis; or of an impairment of the tibia and fibula, to include nonunion or malunion. The provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for application. The Board has also considered whether a separate rating is warranted based on the veteran's scar under Diagnostic Code 7804. Although the March 2004 VA examination noted tenderness of the veteran's left knee, it did not note tenderness of the veteran's scar. Further, the March 2005 VA examination noted no tenderness of the veteran's knee. Therefore, a rating under Diagnostic Code 7804 is not appropriate. In view of the Court's holding in Fenderson, the Board has considered whether the veteran was entitled to a "staged" rating for his service-connected disability, as the Court indicated can be done in this type of case. However, upon reviewing the history of the veteran's disability, the Board finds that, at no time since service connection has been in effect has his knee condition been more disabling than as currently rated. Finally, there is no evidence that the veteran's disability has caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation). There is also no evidence (nor has the veteran contended) that his disability necessitates frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Thus, referral for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (2007) is not warranted. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA 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; and (3) that the claimant is expected to provide; and that (4) VA will request that the claimant provide any evidence in his possession that pertains to the claim. The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board concludes that the veteran has been afforded proper notice under the VCAA with regard to the Pelegrini elements. The RO provided a VCAA notice letter to the veteran in April 2004, prior to the initial adjudication of the claim in July 2004. The VCAA letter notified the veteran that VA would obtain records from federal agencies and also indicated his responsibility regarding submission of evidence. The letter further informed the veteran that it was his responsibility to make sure that the VA received all requested records that are not in the possession of a Federal agency. The letter also informed the veteran that he should tell the RO about any evidence he had that could support his claim. The Board finds that VA has satisfied the four elements of Pelegrini, supra. To whatever extent the recent decision of the Court in Dingess v. Nicholson, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. Although the veteran has not been sent a letter compliant with Dingess, he has not been prejudiced. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Here, the VCAA duty to notify has not been satisfied with respect to the requirements set forth by Vazquez-Flores and Dingess. However, the Board finds that the notice error did not affect the essential fairness of the adjudication. The veteran has exhibited actual knowledge of the criteria needed for an increased rating. At his RO hearing in March 2005, the veteran discussed his limitation of motion of the left knee in great detail, i.e., his range of motion findings, and testified that his limited motion, pain and instability affected his daily activities. See also Veteran's statement received in November 2004. Based on the veteran's testimony, the Board finds that the veteran had actual knowledge of the criteria required for an increased rating and that he had ample opportunity to participate in the claims adjudication process. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) (where a reasonable person would have been able to deduce what evidence was needed to support the claim, the veteran has not been prejudiced by any lack of VCAA notice). With regard to an earlier effective date, the Board finds that the veteran has not been prejudiced. The effective date assigned is one day after the veteran was released from active duty. This is the earliest possible effective date. See 38 C.F.R. § 3.400(b)(2). A remand to inform the veteran of the basis for setting an effective date would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to law does not dictate unquestioning, blind adherence in the face of overwhelming evidence in support of result in a case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to veteran). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has received the veteran's service medical records. Assistance to the veteran shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The veteran was provided with VA examinations in March 2004 and March 2005. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Entitlement to an initial rating in excess of 20 percent for residuals, left knee injury, status post anterior cruciate ligament repair is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs