Citation Nr: 0810781 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 05-27 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a rating higher than 10 percent for a left knee disability with residuals of a meniscectomy, ligament damage, and degenerative joint disease. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Horrigan INTRODUCTION The veteran, who is the appellant, served on active duty from March 1983 to March 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision, dated in October 2003, of the Department of Veterans' Affairs (VA) Regional Office (RO) in Portland, Oregon. In April 2006, the veteran appeared at a hearing before a Decision Review Officer. In June 2007, the veteran appeared at a hearing before the undersigned Veterans Law Judge. Transcripts of the hearings are in the record. In September 2007, the Board remanded the claim for additional evidentiary development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998) FINDING OF FACT The left knee disability is manifested by degenerative joint disease, limitation of flexion to 85 degrees with pain, and limitation of extension to 5 degrees with pan, but the knee is stable. CONCLUSION OF LAW The criteria for a rating higher than 10 percent a left knee disability with residuals of a meniscectomy, ligament damage, and degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71(a), Diagnostic Codes 5257, 5260, 5261 (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and implemented in part at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in his possession that pertains to the claim. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, 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. Also, 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 of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the VA must provide at least general notice of that requirement to the claimant. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication and post-adjudication VCAA notice by letters, dated in August 2003 and in September 2007. The veteran was notified of the evidence needed to substantiate the claim for increase, namely, evidence that the disability had gotten worse and the effect of the disability had on the employment and daily life. The veteran was informed that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any such records on his behalf. He was also asked to submit evidence, which would include that in his possession, in support of his claim. The notice included the provision for the effective date of the claim and for the degree of disability assignable. As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (evidence demonstrating an increase in severity, except for the general notice of the criteria of the Diagnostic Code under which the claimant is rated). To the extent that the VCAA notice came after the initial adjudications, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided substantial content-complying VCAA notice the claim was readjudicated as evidenced by the latest supplemental statement of the case, dated in January 2008. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.) To the extent that the VCAA notice did not include the Diagnostic Code under which the left knee disability is rated, at this stage of the appeal, when the veteran already has notice of the pertinent Diagnostic Codes and rating criteria as provided in the statement of the case, there is no reasonable possibility that further notice of the exact same information would aid in substantiating the claim. As the content error did not affect the essential fairness of the adjudication of the claim for increase, the presumption of prejudicial error as to the content error in the VCAA notice is rebutted. Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained VA records, and afforded the veteran VA examinations. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The service medical records show that the veteran complained of left knee pain following a football injury. After service in September 1990, the veteran had a partial medial meniscectomy. In a rating decision in October 1990, the RO granted service connection for left knee disability, residuals of a meniscectomy and ligament damage, and assigned a 10 percent rating under Diagnostic Code 5257 before and after the termination of a temporary total rating for convalescence associated with the knee surgery. The 10 percent rating has remained in effect and unchanged since then. On VA examination in September 2003, the veteran complained of dull, aching, pain in the left knee with morning stiffness, crepitus, and popping. He denied instability. He reported flare-ups of pain on repetitive motion which occurred about twice weekly, results in loss of motion loss and limping. The pertinent finding was medially joint pain and two + crepitus. Range of motion was from 0 to 130 degrees. No ligament laxity was noted and the McMurray's maneuver was negative. An X-ray showed mild degenerative joint disease. In a rating decision March 2004, the RO amended the left knee disability to include degenerative joint disease. In April 2006, the veteran testified as to how he injured his left knee during service. On VA examination in June 2006, the veteran complained of regular pain in the left knee that increased in severity during flare-ups which occurred twice a week. He also complained of episodes of swelling, stiffness, lack of endurance, popping and grinding sensations, and a sensation of instability, but the knee did not give way. He did not wear a brace on the knee or use a cane. His ability to walk was not limited and he reportedly lost 4 days of work over the previous year because of his left knee. Range of motion was from 0 to 135 degrees with crepitus as well as some pain across the patellofemoral joint. No effusion was noted and no medial or lateral joint pain was noted although he had tenderness across the patellofemoral joint. The knee was stable to varus and valgus movement. In June 2007, the veteran testified that he had knee instability, pain, and swelling. On VA examination in October 2007, the veteran stated that his knee was more symptomatic since he was last examined in 2006. He complained of knee inflammation, clicking, and grinding. He described knee pain, which was worse during flare-ups. He also complained of episodes of swelling and stiffness, but no giving away. He did not wear a brace on the knee or use a cane. Range of motion was from 0 to 130 degrees with crepitus on motion, as well as some pain at the limit of extension and flexion past 90 degrees. With repetitive motion there was pain at the limits of extension and flexion, but motion was 0 to 130 degrees with pain throughout motion that was significantly worse at the terminal 5 degrees of flexion. No effusion was noted and no medial or lateral joint pain was noted although he had tenderness across the patellofemoral joint. The knee was stable to varus or valgus testing. Minimal effusion was reported and there was tenderness over the patellofemoral joint and posterior medial joint line. X-rays showed knee mild to moderate degenerative joint disease in the left knee. The examiner commented that with repetitive movement and flare-ups the veteran loss another five degrees of extension and five degrees of flexion. Rating Criteria Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Rating factors for a disability of the musculoskeletal system included functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Also with any form of arthritis, painful motion is factor to be considered. 38 C.F.R. § 4.59. The service-connected left knee disability is currently rated 10 percent under Diagnostic Code 5257 for instability. Under Diagnostic Code 5257, a 10 percent rating is assigned for slight impairment due to recurrent subluxation or lateral instability of the knee. A 20 percent rating requires moderate impairment due to recurrent subluxation or lateral instability. Since the left knee disability includes degenerative joint disease, arthritis, the disability may also be rated separately under either Diagnostic Code 5260 or 5261 for limitation of flexion or extension, respectively. Under Diagnostic Code 5260, limitation of flexion to 60 degrees is noncompensable, flexion limited to 45 degrees is 10 percent disabling, and flexion is limited to 30 degrees is 20 percent disabling. Under Diagnostic Code 5261, limitation of extension to 5 degrees is noncompensable. Extension limited to 10 degrees is 10 percent disabling, and extension limited to 15 degrees is 20 percent disabling. Extension limited to 20 degrees is 30 percent disabling. Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Analysis At no time during the appeal period has knee instability been found to include on VA examinations in September 2003, in June 2006, and in October 2007. As moderate knee impairment due to recurrent subluxation or lateral instability is not shown, the criteria for a 20 percent rating under Diagnostic Code 5257 have not been met. As for separate ratings based on limitation of flexion, on VA examinations in September 2003 and in June 2006, flexion was to 130 and 135 degrees, respectively. On VA examination in October 2007, flexion was limited to 90 with pain and additional five degrees was loss with repetitive movement or during flare-ups. As flexion is limited at worse to 85 degrees, the criteria for a separate 10 percent rating for limitation of flexion under Diagnostic Code 5260, that is, flexion limited to 45 degrees is not shown. As for limitation of extension, on VA examinations in September 2003, in June 2006, and in October 2007, extension was to 0 degrees or to the normal position. On VA examination in October 2007, extension was additional limited by five degrees with repetitive movement or during flare-ups. As extension is limited at worse to 5 degrees, the criteria for a separate 10 percent rating for limitation of extension under Diagnostic Code 5261, that is, extension limited to 10 degrees is not shown. For these reasons, the preponderance of the evidence is against the claim for a rating higher than 10 percent for the left knee disability, considering the applicable Diagnostic Codes and additional factors such as functional loss due pain, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER A rating higher than 10 percent for left knee disability with residuals of a meniscectomy, ligament damage, and degenerative joint disease is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs