Citation Nr: 0810341 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-32 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for traumatic arthritis of the right knee, rated as limitation of extension. 2. Entitlement to a disability rating in excess of 10 percent for traumatic arthritis, status-post meniscectomy, of the left knee, rated as limitation of extension. 3. Entitlement to a disability rating in excess of 10 percent for limitation of flexion of the right knee. 4. Entitlement to a disability rating in excess of 10 percent for limitation of flexion of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from July 1967 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the veteran's claims of entitlement to disability ratings in excess of 10 percent for traumatic arthritis of the right knee and for traumatic arthritis, status-post meniscectomy, of the left knee, and granted separate non-compensable (zero percent) ratings for limitation of flexion in each knee. The veteran disagreed with this decision in March 2005 and perfected a timely appeal in September 2005. In a May 2007 rating decision, the RO assigned separate 10 percent ratings for limitation of flexion in each knee. Because the separate ratings assigned to the veteran's service-connected limitation of flexion in each knee are not the maximum ratings available for this disability, these claims remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on her part. REMAND The logic used in assigning the separate evaluations is somewhat lost on the Board. The veteran has been assigned two 10 percent ratings for each knee, basically one 10 percent rating for limitation of extension (the arthritis-DC 5003-5261) and another 10 percent for limitation of flexion (DC 5260). Separate ratings for limitation of extension and limitation of flexion are certainly permitted where warranted. The RO, however, determined in the May 2007 that [a]n evaluation of 10 percent is granted for leg flexion which is limited to 45 degrees. A higher evaluation of 20 percent is not warranted unless evidence demonstrates leg flexion which is limited to 30 degrees, or for extension of the leg which is limited to 15 degrees, or for recurrent subluxation or lateral instability of the knee which is moderate, or whenever the semilunar cartilage is dislocated with frequent episodes of "locking," pain, and effusion into the joint. (Emphasis added.) The reference to recurrent subluxation or lateral instability of the knee obviously refers to DC 5257. Indeed, if the evidence shows moderate subluxation or lateral instability, a separate 20 percent rating would be warranted. If the evidence shows just slight subluxation or lateral instability, a separate 10 percent rating should be assigned. See VA O.G.C. Prec. Op. No. 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997) (providing that a veteran with service- connected arthritis and instability of the knee may be rated separately under Codes 5003 and 5257 so long as the evaluation of knee dysfunction under both codes does not amount to prohibited pyramiding under 38 C.F.R.§ 4.14). Thus, a determination must be made as to whether there is any subluxation or instability in the knees to warrant separate ratings pursuant to DC 5257. The veteran has contended that the knees are instable. In statements on the veteran's March 2005 notice of disagreement and in the Brief submitted by her service representative to the Board in March 2008, the veteran contended that her service-connected bilateral knee arthritis and bilateral limited knee flexion are more disabling than currently evaluated and have worsened since her most recent VA examination in December 2004. She also has contended that this VA examination was inadequate for VA rating purposes. Given the veteran's contentions, and given the length of time that has elapsed since her most recent VA examination, the Board finds that, on remand, the veteran should be scheduled for an updated VA examination. The Board also notes that, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Veterans Court) clarified VA's notice obligations in increased rating claims. For an increased-compensation claim, 38 U.S.C.A. § 5103(a) now 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, 22 Vet. App. 37 (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. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. It appears from a review of the claims file that the veteran has been unemployed throughout the pendency of this appeal. The VCAA notice letter sent to the veteran and her service representative in March 2004 correctly requested evidence showing that her service-connected bilateral knee arthritis had increased in severity, properly identified the sources of such evidence, and also invited the veteran to submit statements from other individuals who could describe from their knowledge and personal observations how her service- connected knee disabilities had worsened. Unfortunately, however, the March 2004 VCAA notice letter did not indicate that the veteran also could submit evidence showing the effect that worsening of her disabilities had on her employment and daily life. See Vazquez-Flores, supra. Accordingly, and because the veteran's claims are being remanded for additional development, on remand, the RO should provide the veteran with updated VCAA notice which complies with the new requirements of VCAA notice in increased rating claims as outlined in Vazquez-Flores. Id. Accordingly, the case is REMANDED for the following action: 1. Review the claims file and ensure that all notice obligations have been satisfied in accordance with the recent court decisions, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, and any other applicable legal precedent. Specifically, issue appropriate notice on the appellant's claims of entitlement to disability ratings greater than 10 percent for traumatic arthritis of the right knee, limited flexion of the right knee, traumatic arthritis, status-post meniscectomy of the left knee, and for limited flexion of the left knee. Such notice must indicate that the veteran can submit evidence showing the effect that worsening of her disabilities had on her employment and daily life. A copy of the notice letter must be included in the claims file. 2. Ask the veteran to identify all VA and non-VA medical providers who have evaluated or treated her for traumatic arthritis and limited flexion in the right knee, and/or traumatic arthritis and limited flexion in the left knee in recent years. Obtain outstanding VA treatment records that have not already been associated with the claims file. Once signed releases are received from the veteran, obtain outstanding private treatment records that have not already been associated with the claims file. A copy of any negative response(s) should be included in the claims file. 3. Schedule the veteran for VA examination(s) to determine the current severity of her service-connected bilateral knee disabilities. The claims file must be made available to the examiner(s) for review. The examiner should provide results of range of motion testing for the both knees. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and the examiner should identify and state at what point pain begins and ends. The examiner should address whether and to what extent there is likely to be additional range of motion loss due to any of the following: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain limits functional ability during flare-ups or with activity. Finally, the examiner is asked to report whether there is any subluxation or lateral instability of the knees. 4. After completion of the foregoing, readjudicate the issues on appeal, to include consideration of whether separate ratings are warranted pursuant to Diagnostic Code 5257. If the benefits sought on appeal remain denied, the veteran and her service representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).