Citation Nr: 0810976 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-26 992 ) 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 30 percent for residuals, right knee medial menisectomy, osteoarthritis, status post-right knee total replacement. 2. Entitlement to a rating in excess of 10 percent for arthritis of the right knee, associated with residuals, right knee medial menisectomy for the period prior to July 1, 2006. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The veteran served on active duty from August 1953 to May 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran testified at a personal hearing before the undersigned Acting Veteran's Law Judge, sitting at the RO in January 2008. A transcript of the hearing is associated with the claims file. The Board observes that a March 2006 rating decision severed the veteran's separate rating for arthritis, associated with his right knee disability, effective July 1, 2006. The decision was based on a finding that the original assignment of such rating was pyramiding, i.e., the rating of the same symptoms of a disability under different rating codes. 38 C.F.R. § 4.14. This reduction has not been appealed and is not before the Board at this time; however, it effectively limits consideration of an increase of the veteran's separate rating for the arthritis to the period ending June 30, 2006. In increased rating claims, the rating period for consideration begins one year prior to receipt of the veteran's application for an increased rating. In this case, the veteran's claim was received by the RO on July 23, 2004. Therefore, the appeal period with regard to the separate rating for arthritis is from July 23, 2003 to June 30, 2006, as reflected on the title page. See 38 C.F.R. § 3.400(o)(2). The issues of a rating in excess of 30 percent for residuals, right knee medial menisectomy, osteoarthritis, status post- right knee total replacement service connection for bilateral hearing loss and tinnitus 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 For the period prior to July 1, 2006, X-rays of the veteran's right knee is negative for any findings of arthritis; and, any loss of range of motion of the right knee is already considered as a residuals of the veteran's service connected status post right total knee replacement. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for arthritis of the right knee, associated with residuals, right knee medial menisectomy have not been met for the period prior to July 1, 2006. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006)), eliminated the concept of a well- grounded claim and redefined VA's obligations with respect to its duties to notify and assist a claimant. In August 2001, VA issued regulations to implement the VCAA. 66 Fed. Reg. 45,620 (August 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007)). The Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. In this case, the veteran was provided with a VCAA notification letter in August 2004, prior to the initial unfavorable AOJ decision issued in November 2004. Under Pelegrini, for a VCAA notice to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the notice must: (1) inform a claimant about the information and evidence not of record that is necessary to substantiate the claims; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence that the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claims. Pelegrini, 18 Vet. App. at 120-121. The August 2004 notice letter met all these requirements. Also pertinent to VA notice requirements is the Court's decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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. In the present case, a separate attachment to the April 2006 SOC notified the veteran of the type of evidence necessary to establish both a disability rating and an effective date. Moreover, as the Board concludes herein that the preponderance of the evidence is against the veteran's increased rating claim, any question as to the appropriate effective date to be assigned are rendered moot. The Board has also considered the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) which held that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA 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. 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 VA 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. The Board finds that the August 2004 letter to the veteran specifically advised him that an increased disability rating would require a showing that the veteran's condition had worsened. In addition, an April 2006 letter/attachment invited the veteran to submit evidence that would demonstrate limitations in the veteran's daily life and work, such as statements from employers as to job performance, lost time, or other information regarding how your condition(s) affect your ability to work; or statements discussing your disability symptoms from people who have witnessed how they affect you." The Board notes that the VCAA letters of record did not contain notice of the specific schedular criteria or notify the veteran as to the use of diagnostic codes. However, it is apparent from the record that the veteran had actual notice of the applicable criteria. The veteran discussed the applicable rating criteria with his representative during his personal hearing. See the January 2008 hearing transcript. It is therefore clear that the veteran was aware of the applicable schedular standards. Accordingly, due to the content of the notice given and the veteran's actual knowledge, the Board finds that the veteran has received appropriate VCAA notice for his increased rating claims as contemplated by the Court in Vazquez-Flores. The Board recognizes the inadequate timing of the aforementioned documents; however, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a Statement of the Case (SOC) or Supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) [hereinafter Mayfield III]. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328). In the present case, subsequent to the veteran being issued the above letters, the veteran's claim was readjudicated in a July 2007 SSOC. Accordingly, as the veteran's notice as to the requirements of Dingess and Vazquez-Flores with regard to his claim for an increased rating for arthritis, associated with his right knee disability, was followed by a readjudication, the Board finds that the veteran had a meaningful opportunity to participate in the development and adjudication of his claim and that the essential fairness to the veteran was maintained in this case. All that VCAA requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished all due process concerns have been satisfied. See Bernard at 394 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). As indicated above, all content requirements of a VCAA notice have been fully satisfied in this case. Therefore, the Board finds that delaying appellate review by providing additional VCAA letters to the veteran would be of no benefit. VA has also fulfilled its duty to assist the veteran in making reasonable efforts to identify and obtain relevant records in support of the veteran's claim and providing him with a VA examination. October 2004 and January 2006 VA examination reports and private treatment records were reviewed by both the AOJ and the Board in connection with adjudication of his claim. The veteran has not identified any additional, relevant records that VA needs to obtain for an equitable disposition of his claim. Based on these facts, the Board concludes that the medical evidence of record is sufficient to adjudicate the veteran's claim without further development. Thus, the Board finds that additional efforts to assist or notify the veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duty to inform and assist the veteran at every stage in this case. Therefore, he will not be prejudiced by the Board proceeding to the merits of the claim. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). 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. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. As indicated, pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran's service-connected arthritis, associated with residuals, right knee medial menisectomy, osteoarthritis, status post-right knee total replacement. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to this disability beyond that which is set out herein below. In an increased rating case the present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in Fenderson v. West, 12 Vet. App. 119 (1999), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. While this appeal was pending, the Court also held that staged ratings are appropriate for increased rating claims when factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, in accordance with Hart, the Board has considered the propriety of staged ratings in evaluating the veteran's service-connected disability. The veteran's arthritis, associated with residuals, right knee medial menisectomy, osteoarthritis, status post-right knee total replacement from July 23, 2003 to June 30, 2006 is evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010. He contends that the disability has increased in severity, and, therefore, that he is entitled to a rating in excess of 10 percent for his service-connected arthritis of the right knee. In rating musculoskeletal disabilities, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. By way of background, in a May 1971 rating decision, the veteran was granted service connection for right medial menisectomy and assigned an initial 100 percent disability rating for convalescence from surgery from August 6, 1970 to September 30, 1970, and a noncompensable rating evaluation, pursuant to Diagnostic Code 5257, effective October 1, 1970. Thereafter, in a June 1985 rating decision, an increased rating of 10 percent was granted for residuals, right medial mensisectomy, pursuant to Diagnostic Code 5257, effective December 21, 1984. In a December 2001 rating decision, the veteran was granted a temporary total disability rating pursuant to 38 C.F.R. § 4.30 from August 28, 2001 to September 30, 2002, as a result of surgery for right total knee replacement that required a period of convalescence. This rating decision also instated a rating evaluation of 30 percent for the veteran's right knee disability following his period of convalescence, pursuant to Diagnostic Codes 5257- 5055, beginning October 1, 2002. Further, the rating decision established a separate rating for arthritis of the right knee, pursuant to Diagnostic Code 5010, effective April 11, 2001. In July 2004, the veteran filed a claim of entitlement to a rating in excess of 30 percent for his right knee replacement and in excess of 10 percent for his right knee arthritis. Such claim was denied in a November 2004 rating decision, and the veteran thereafter appealed to the Board. The Board acknowledges that the veteran's compensation for his right knee disability as a result of his total knee replacement is being remanded, as discussed below. However, the basis for a denial herein of a rating in excess of 10 percent for arthritis, associated with the veteran's right knee disability is the rating criteria as defined by the regulations and the evidence of record prior to July 1, 2006, not the degree of disability represented by the veteran's current right knee symptomology. Therefore, the Board finds no prejudice to the veteran in proceeding with a decision on this issue, while remanding the veteran's rating for his residuals, right knee medial menisectomy, osteoarthritis, status post-right knee total replacement. Diagnostic Code 5010, arthritis due to trauma that is substantiated by X-ray findings is rated under the rating criteria for degenerative arthritis, Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. With X-ray evidence of involvement of 2 or more major joints, with occasional incapacitating episodes, a 20 percent rating will be assigned. With X-ray evidence of involvement of 2 or more major joints, or 2 or more minor joint groups, a 10 percent rating will be assigned. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Diagnostic Code 5003, Note (1). The Board finds that the veteran is not entitled to a rating in excess of 10 percent for his arthritis, associated with residuals, right knee medial menisectomy, osteoarthritis, status post-right knee total replacement. The Board observes that the rating at issue is in contemplation of only the veteran's right knee. X-rays taken at both the October 2004 and January 2006 VA examinations are negative for any findings of arthritis of the right knee. Indeed, as discussed above, the record establishes that the veteran underwent a total knee replacement in August 2001, which eliminated existence of any arthritis as the knee joint itself was removed and replaced. Further, to the extent that the veteran experienced any loss range of motion of the right knee during the appeals period, that loss of range of motion was considered in the evaluation of his status post right total knee replacement. 38 C.F.R. § 4.71a, Diagnostic Code 5055 provides that the chronic residuals of a total knee replacement include complaints of severely painful motion or weakness in the affected extremity, and that intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to diagnostic codes 5256, 5261, or 5262. As such, notwithstanding the fact that the veteran does not suffer from arthritis of the right knee, the assignment of a higher rating under Diagnostic Code 5003 for loss of range of motion would amount to pyramiding and therefore be impermissable. 38 C.F.R. § 4.14 (2007). The Board has contemplated whether the case should be referred for extra-schedular consideration. An extra- schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1) (2007). The Board finds no evidence that the veteran's arthritis, associated with residuals, right knee medial menisectomy, presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The objective medical evidence of record shows that manifestations of the veteran's service-connected disability does not result in a marked functional impairment in a way or to a degree other than that addressed by VA's Rating Schedule. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service- connected disability in civil occupations. 38 U.S.C.A. § 1155 (West 2002). Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER Entitlement to a rating in excess of 10 percent for arthritis of the right knee, associated with residuals, right knee medial menisectomy for the period prior to July 1, 2006 is denied. REMAND The veteran has filed service connection claims for bilateral hearing loss and tinnitus and an increased rating claim for residuals, right knee medial menisectomy, osteoarthritis, status post-right knee total replacement. With regard to his service connection claims, he contends that his auditory disorders are the result of exposure to jet engines and large weapons fire while serving as a photographer on naval aircraft carriers, as well as exposure to weapons fire during weapons qualification while on active duty for training in the Coast Guard Reserve. The Board observes that the only post-service medical evidence of record relating to the veteran's hearing disorders is a June 2007 VA treatment record and a July 2004 private audiogram. The June 2007 record provides a diagnosis for his hearing loss, but does not comment on etiology. A statement that the veteran's hearing loss and tinnitus are a result of in-service noise exposure is associated with the July 2004 audiogram; however, the Board observes that this statement appears to be merely a repetition of the veteran's contentions, not an opinion as to nexus. Accordingly, the Board determines that a remand is necessary to afford the veteran a VA examination with regard to these claims. As for his increased rating claim, the Board notes that, at his January 2008 hearing, the veteran testified that his service-connected knee disability had increased in severity since his last VA examination in January 2006. Further, the veteran testified to experiencing symptoms of constant pain and weakness in his right knee. Additionally, the most recent treatment record relevant to the veteran's right knee disability is dated in June 2006 and only comments that the veteran's pain medication is working well. Therefore, there is no evidence addressing the current severity of the veteran's service-connected residuals, right knee medial menisectomy, osteoarthritis, status post-right knee total replacement. Accordingly, the Board determines that a remand is necessary in order to afford the veteran a contemporaneous examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following action: 1. The veteran should be sent a VCAA letter with regard to his claim for an increased rating for his service- connected right knee disability that is in accordance with the requirements of Vazquez-Flores. 2. The veteran should be scheduled for a VA examination to assess the current nature and severity of his service- connected residuals, right knee medial menisectomy, osteoarthritis, status post-right knee total replacement. The claims file should be made available to the examiner for review, and the examination report should reflect such review. Further, in the report, the examiner should address any additional functional limitations due to pain, weakness, fatigability, and lack of endurance. See Deluca. 3. The veteran should be scheduled for a VA examination to determine the nature and etiology of the veteran's bilateral hearing loss and tinnitus. The examiner must review the claims file and the report should reflect that such a review was accomplished. Any further evaluations, studies, and tests deemed necessary by the examiner should be conducted. The examiner must then render an opinion as to whether the veteran's bilateral hearing loss and tinnitus are at least as likely as not (a 50% or higher degree of probability) etiologically related to his active service and state a rationale for such opinion. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the veteran's service connection and increased rating claims should be readjudicated, to include all evidence received since the July 2007 supplemental statement of the case. The veteran and his representative should then be issued another 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). ______________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs