Citation Nr: 0810696 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 05-27 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected mechanical low back pain with degenerative disc disease. 2. Entitlement to rating in excess of 10 percent for service-connected mechanical low back pain with degenerative disc disease, prior to July 26, 2007. 3. Entitlement to a rating in excess of 20 percent for service-connected mechanical low back pain with degenerative disc disease, from July 26, 2007. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The veteran had active service from August 1993 to February 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which affirmed a 10 percent evaluation for the veteran's service-connected lumbosacral strain with degenerative disc disease and denied service connection for a right knee disability, secondary to the service-connected low back disorder. In a rating decision dated in September 2007, the RO granted an increased rating of 20 percent for lumbosacral strain with degenerative disc disease, effective July 26, 2007. In an August 2005 substantive appeal (Form 9), the veteran requested a hearing before a Veterans Law Judge at the RO. In correspondence received in October 2005, the veteran withdrew the hearing request. The issues of entitlement to a rating in excess of 10 percent for mechanical low back pain with degenerative disc disease prior to July 26, 2007, and in excess of 20 percent beginning July 26, 2007, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A right knee disorder is not shown to be etiologically related to active service, nor was it proximately caused or worsened by service-connected mechanical low back with degenerative disc disease. CONCLUSION OF LAW A right knee disorder was not incurred during active service, nor is any such disability causally related to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in February 2004. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in her possession that pertains to the claim. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. VA has obtained service medical records, post-service treatment records, and afforded the veteran and medical examination and obtained a medical opinion as to the etiology of disability at issue. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Factual Background The veteran filed her claim for service connection for a right knee disorder, as secondary to her service-connected low back disorder, in December 2003. The veteran's service medical records are negative for any complaints, treatment or diagnoses of a right knee disorder. The veteran underwent a VA examination of the spine in July 2004. She complained of chronic mechanical low back pain and of numbness and tingling in the right leg. The examiner diagnosed the veteran with spinal disc condition and mechanical low back pain without objective clinical findings of radiculopathy. The veteran also underwent a VA examination of the knees in July 2004. She complained of right leg numbness and buckling after sitting for a period of time. Following physical examination and diagnostic testing, the examiner reported that there was no specific diagnosis for the right knee. It was stated that the buckling and numbness episodes most likely represented transient positional compression of neurovascular structures related to body habitus and size, not to radiculopathy and not to joint disease of the knee. The examiner concluded that he could not find a knee condition that could be reasonably associated with the veteran's service-connected lumbar spine condition. A June 2005 letter was received from a VA physician who stated that the veteran was receiving care for multiple medical conditions, including intervertebral disk condition which had increased in severity to include numbness in her right leg. The physician felt that the problems that the veteran was currently experiencing were at least as likely as not related to the service-connected intervertebral disk syndrome. VA medical treatment records dated from 2001 to 2007 show that the veteran sought treatment for low back pain and right leg pain and numbness. In a March 2007 VA outpatient treatment record, the veteran was diagnosed as having right knee arthralgia. A March 2007 x-ray report showed that degenerative joint disease or medial meniscal injury should be considered. The veteran underwent a VA examination of the spine in July 2007. The examiner noted that the veteran has been followed and evaluated in the neurology clinic in recent years with complaints of numbness in the right leg and right side of the body. Electrodiagnostic studies have not confirmed radiculopathy. MRI studies showed a small L5-S1 disc with minimal foraminal impingement, which was contralateral to the veteran's symptoms. Neurological examination revealed no deficits, with sensation intact throughout. The veteran was diagnosed as having degenerative arthropathy of the lumbosacral spine with degenerative disc disease, diffuse. The examiner noted that there were no objective findings for radiculopathy at any spinal level. The veteran underwent a VA examination of the knees in July 2007. The examiner indicated that he had carefully reviewed the veteran's medical history and there was no documentation or medical evidence to suggest that the veteran's lumbosacral condition is responsible for her right knee condition. An x- ray of the right knee showed minimal bone spurring of the distal femur and proximal tibia along the medial side of the knee. The veteran was diagnosed as having mild degenerative joint disease of the right knee which the examiner opined was most likely a constitutional/degenerative/body habitus related condition. The examiner did not see any medical or logical correlation to the veteran's lumbosacral spine condition or her military service. Service Connection Service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. § 1131. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2007). Moreover, the Court has held that where a service-connected disability causes an increase in, but is not the proximate cause of, a nonservice-connected disability, the veteran is entitled to service connection for that incremental increase in severity attributable to the service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The veteran contends that she has a right knee disorder that is caused by her service-connected low back disorder. The medical evidence of record establishes that the veteran has degenerative joint disease of the right knee. The preponderance of the medical record, however, shows that the veteran's right knee disorder is not related to any incident of service. The July 2007 VA examiner concluded that there was no medical or logical correlation between the veteran's right knee condition and the veteran's lumbosacral spine condition or her military service. The examiner maintained that the degenerative joint disease of the right knee was constitutional/body habitus related condition. This opinion was based on a thorough review of the veteran's medical history. The Board acknowledges the letter from the VA physician in June 2005, which states that the veteran's numbness in the right leg was at least as likely as not related to the service-connected intervertebral disk syndrome. The numbness, however, was not diagnosed as a separate knee disability. In contrast, the July 2007 VA examiner (who also examined the veteran in July 2004) concluded on two occasions that the veteran's right knee disorder was not related to the veteran's lumbosacral disorder. The VA examiner's conclusions were based on a thorough review of the veteran's medical history and clinical evaluation of the veteran. Based upon the foregoing, the Board finds that the July 2007 VA examiner's opinion is more persuasive. Consequently, the veteran's claim for service connection must be denied. The Board further notes that by addressing that there was no relationship between the veteran's right knee disorder and her service-connected lumbosacral disorder, the July 2007 examiner addressed causation and aggravation. As the preponderance of the evidence is against the claim for service connection for a right knee disorder, the benefit of the doubt doctrine is not applicable and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a right knee disorder is denied. REMAND At a July 2007 VA examination, the veteran reported that "in the past" she had experienced significant occupational impairment from her low back condition. She reportedly lost 2 months of work in 2006 while employed by the prison system. For the past 10 months, she had been working in a retail setting, but sometimes had to take time off for her back. It was usually 1-2 days, but in May 2007 had been for 7 days. The Board notes that the veteran submitted a copy of a Family and Medical Leave request that was submitted to her employer. It was noted that the veteran requested leave from July to September 2005 for chronic paresthesia with recent worsening In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). During the course of the appeal, the veteran's service- connected back disability appears to have caused interference with employment. The RO has not addressed the issue of extraschedular consideration for the service-connected issue on appeal. The Board is precluded from assigning an extra- schedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). Thus, a remand for extraschedular consideration is appropriate. The RO provided notice in connection with the claims for increase in February 2004; however, the notice did not discuss the specific criteria for an increased rating, thus, the duty to notify has not been satisfied with respect to VA's duty to notify him of the information and evidence necessary to substantiate the claim. See Quartuccio, 16 Vet. App. 183 (2002); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Based upon a careful reading the statements submitted by the veteran and her representative, it cannot be determined that the notice error was not prejudicial. Thus, it is necessary that he be provided an additional notice letter discussing the criteria for an increased rating in accordance with the holding in Vazquez-Flores, supra. Accordingly, the case is REMANDED for the following action: 1. Provide the veteran with specific written notice of the rating criteria necessary for the increased rating claim at issue in accordance with the holding in Vazquez-Flores. 2. After affording the veteran a reasonable time to respond to the notice above, the RO should submit the veteran's claim to the Director of Compensation and Pension Service pursuant to the provisions of 38 C.F.R. § 3.321(b) for consideration of whether an extraschedular rating is warranted. 3. If any benefit sought on appeal remains denied, the veteran and her representative should be provided with a supplemental statement of the case and given the opportunity to respond thereto. 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs