Citation Nr: 0811324 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 04-42 198 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for limited flexion of the right knee due to tricompartmental arthritis. 2. Entitlement to a separate, initial compensable rating for limited extension of the right knee. 3. Entitlement to an initial rating in excess of 20 percent for limited flexion of the left knee due to tricompartmental arthritis. 4. Entitlement to a separate, initial compensable rating for limited extension of the left knee due to tricompartmental arthritis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The veteran had active service from February 1981 to April 1985. These matters come before the Board of Veterans' Appeals (Board) from a March 2003 rating decision in which the RO granted service connection and assigned an initial 10 percent rating each for right and left knee tricompartmental arthritis, effective October 18, 2002. The veteran filed a notice of disagreement (NOD) with the assigned ratings in September 2003, the RO issued a statement of the case (SOC) in November 2004, and the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in November 2004. In a February 2006 rating decision and supplemental SOC (SSOC), a decision review officer (DRO) assigned a higher initial rating of 20 percent for each disability, also effective October 18, 2002. As this appeal emanates from the veteran's disagreements with the initial ratings assigned following the grant of service connection for disability of each knee, the Board has characterized each claim in accordance with Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing claims for higher initial ratings from claims for increase for already service-connected disability). Further, although the RO has assigned a higher initial rating for each disability, inasmuch as a higher rating for each disability is available, and the veteran is presumed to seek the maximum available benefit for a disability, the claims for higher initial ratings remain viable on appeal. Id.; AB v. Brown, 6 Vet. App. 35, 38 (1993). In August 2006, the veteran and his wife testified during a hearing before the undersigned Veterans Law Judge at the San Antonio satellite office of the RO; a transcript of the hearing is of record. In December 2006, the Board remanded these matters to the RO, via the Appeals Management Center (AMC), in Washington, D.C., for additional development. After completing the requested action, the AMC continued the denials of the claims (as reflected in an October 2007 SSOC), and returned these matters to the Board for further appellate consideration. While the prior remand encompassed only two issues, in view of the discussion in the analysis, below (and the Board's favorable action herein), the Board has recharacterized the appeal as effectively encompassing the four issues set forth on the title page. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each matter on appeal has been accomplished. 2. Since the October 18, 2002 effective date of the grant of service connection for limited flexion of the right knee, the veteran has had flexion of the right knee to 45 degrees and extension to between 5 and 10 degrees, along with further limitation of motion due to pain, fatigue, weakness, lack of endurance, and incoordination. 3. Since the October 18, 2002 effective date of the grant of service connection for limited flexion of the left knee, the veteran has had flexion of the left knee to 45 degrees and extension to between 5 and 10 degrees, along with further limitation of motion due to pain, fatigue, weakness, lack of endurance, and incoordination. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for limited flexion of the right knee due to tricompartmental arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5261 (2007). 2. Resolving all reasonable doubt in the veteran's favor, the criteria for a separate, initial 10 percent but no higher rating for limited extension of the right knee due to tricompartmental arthritis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260 (2007). 3. The criteria for an initial rating in excess of 20 percent for limited flexion of the left knee due to tricompartmental arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5261 (2007). 4. Resolving all reasonable doubt in the veteran's favor, the criteria for a separate, initial 10 percent but no higher rating for limited extension of the left knee due to tricompartmental arthritis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5261 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also is aware of the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez- Flores, the Court found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate an increased rating claim: (1) 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; (2) 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 Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) 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. Id. at 43-44. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, May 2004 and January 2007 letters provided notice to the veteran regarding what information and evidence was needed to substantiate the claims for higher initial ratings for the veteran's bilateral tricompartmental knee arthritis, as well as what information and evidence must be submitted by the veteran, what information and evidence would be obtained by VA, and the need for the veteran to advise VA of and to submit any further evidence that is relevant to the claims. While the November 2004 SOC listed only the diagnostic code applicable to ratings for limitation of extension, Diagnostic Code 5261, the October 2007 SSOC explained that separate ratings could be assigned where motion of the knee is limited in both flexion and extension. [Parenthetically, the Board notes that providing the criteria for higher ratings for a disability in SOCs/SSOCs suffices for Dingess/Hartman.] In addition, the January 2007 letter also informed the veteran how disability ratings and effective dates are assigned and the type of evidence that impacts those determinations. This letter also indicated that VA would assign a disability rating determined by applying relevant diagnostic codes and considering the impact of the disability and its symptoms on employment, and the letter also provided examples of the types of medical and lay evidence that the veteran could submit (or ask VA to obtain) that could affect how VA assigned a disability rating. After issuance of notice identified above, and opportunity for the veteran to respond, the October 2007 SSOC reflects readjudication of the claims. Hence, the veteran is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of the veteran's service medical records, post-service private medical records, and VA outpatient treatment (VAOPT) records, as well as reports of VA and VA-authorized examinations. Also of record and considered in connection with the appeal is the transcript of the veteran's Board hearing as well as various written statements submitted by the veteran and by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any of the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error and affirming that the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. Part 4 (2007). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2007); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is or primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson, the United States Court of Appeals for Veterans Claims noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. The RO assigned initial 10 percent ratings for bilateral tricompartmental arthritis under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5261, applicable to limitation of extension of the knee. Under DC 5003, arthritis is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (here, as discussed below, DCs 5260 and 5261, applicable to limitation of flexion and extension, respectively). When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is assignable for each major joint or group of minor joints affected by limitation of motion. See 38 C.F.R. § 4.71a, DC 5003 (2007). Under DC 5260, limitation of flexion of either leg to 60 degrees warrants a noncompensable (zero percent) rating. A 10 percent rating requires flexion limited to 45 degrees. A 20 percent rating requires flexion limited to 30 degrees. A 30 percent rating requires flexion limited to 15 degrees. Under DC 5261, limitation of extension of either leg to 5 degrees warrants a 0 percent rating. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating requires extension limited to 15 degrees. A 30 percent rating requires extension limited to 20 degrees. A 40 percent rating requires extension limited to 30 degrees. A 50 percent rating requires extension limited to 45 degrees. Standard range of knee motion is from 0 degrees (extension) to 140 degrees (flexion). See 38 C.F.R. § 4.71, Plate II (2007). The VA General Counsel has held that separate ratings under DCs 5260 and 5261, for limitation of flexion and extension of the leg, respectively, may be assigned for disability of the same joint. See VAOGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2007); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Considering the evidence of record in light of the above, the Board finds that the veteran is entitled to initial ratings of 20 and 10 percent for limitation of flexion and extension, respectively, of each knee. The RO assigned initial 10 percent ratings, under DC 5261, on the basis of range of motion findings on the February 2003 VA examination which indicated that extension of each knee was limited to 10 degrees. On that examination, flexion of the right knee was to 95 degrees and flexion of the left knee to 110 degrees, neither of which warranted a separate initial, compensable rating for limitation of flexion. April and July 2004 VAOPT records similarly indicated that flexion of either knee was not limited to 45 degrees, warranting a separate, initial compensable rating. However, on the November 2004 VA-authorized examination, flexion was limited to 45 degrees bilaterally and extension was to 5 degrees bilaterally. In addition, the examiner indicated that range of motion was further limited by pain, fatigue, weakness, lack of endurance, and incoordination, with pain having the most major impact. Based on these findings, the DRO assigned initial 20 percent ratings for each knee under DC 5260, reflecting limitation of flexion to 45 degrees, and then additional limitation due to the DeLuca factors. The Board finds that the veteran is not entitled to an initial rating in excess of 20 percent for limitation of flexion of either knee, because the limitation of flexion to 45 degrees warrants a 10 percent rating under DC 5260, and the examiner did not indicate the degree to which flexion was additionally limited by the DeLuca factors. Therefore, the RO's decision to assign the next higher rating of 20 percent for each knee, assuming additional limitation of flexion to 30 degrees, was appropriate. However, even considering pain and other cited DeLuca factors, there is no medical evidence that these symptoms have at any time since the October 18, 2002 effective date of the grant of service connection been so disabling actually or effectively result in flexion limited to 15 degrees-the requirement for the next higher 30 percent rating under DC 5261. In addition, while the DRO changed the rating code from DC 5261 to DC 5260, it did not indicate whether it considered that the initial 10 percent ratings for limitation of extension each knee should remain in effect. While the AMC indicated in the October 2007 SSOC that it considered separate ratings for limitation of extension of each knee under VAOPGCPREC 9-2004, it found that such separate, initial ratings were not warranted. The Board finds, however, that, resolving all reasonable doubt in the veteran's favor, separate, initial ratings for limitation of extension of each knee due to tricompartmental arthritis, are warranted. While there has not been a finding of extension limited to 10 degrees on examination since the March 2003 VA examination , that initial finding, along with the subsequent findings of limitation of extension to 5 degrees and the additional limitation due to pain and the other DeLuca factors indicated by the November 2004 VA- authorized examiner, warrants an initial 10 percent rating for each knee based on to limitation of extension to 10 degrees. However, even considering pain and other factors, there is no medical evidence that these symptoms have at any time since the October 18, 2002 grant of service connection been so disabling actually or effectively result in extension limited to 15 degrees-the requirement for the next higher 20 percent rating under DC 5260. The Board has considered the applicability of alternative diagnostic codes for evaluating the veteran's bilateral tricompartmental knee arthritis, but finds that no higher ratings are assignable. The range of motion findings indicate that there has been no ankylosis, and the November 2004 VA-authorized examiner specifically found that ankylosis was absent. Thus a higher rating is not warranted under DC 5256. Moreover, April and July 2004 VAOPT notes and the March 2003 VA examination report reflects that the knees were stable, with no laxity, and the report of the November 2004 VA- authorized examination doest not indicate that there was any instability; rather, the examiner noted that the Drawer test, which tests the stability of the anterior cruciate ligament, was negative. The Board notes that an August 2004 treatment note, apparently prepared in connection with the Social Security Administration (SSA) disability determination, indicates anterior-posterior varus/valgus instability. However, given the brief and limited nature of this treatment note, and the fact that the physician who prepared this note did not describe the testing on which this conclusion was based or the degree of instability, as compared to the more thorough and descriptive VAOPT notes and VA examination report described above, the Board finds that the preponderance of the evidence reflects that there has not been recurrent subluxation or lateral instability of either knee at any time since the October 18, 2002 grant of service connection. Thus, an additional separate rating is not warranted for instability of either knee. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998) (finding that separate ratings are possible for a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee, under DCs 5003 and 5257, where such separate ratings are based on additional disabling symptomatology). Moreover, there has been no dislocation of semilunar cartilage or impairment of tibia and fibula noted in the April 2004 bilateral knee X-ray report; thus, higher ratings are not warranted under DCs 5258 or 5262. The above determinations are based upon consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds that there is no showing that, at any point since the October 18, 2002, effective date of the grant of service connection, any of the veteran's knee service- connected knee disabilities reflects so exceptional or unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (as cited in the November 2004 SOC and discussed in the October 2007 SSOC). While the Board notes the knee surgeries the veteran has undergone and the significant impact that his knee disabilities have had on his employment, no knee disability has been shown to markedly interfere with employment (i.e., beyond that contemplated in each rating e assigned rating at each stage). See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified 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"). This is particularly true in light of the Board's decision to award separate, compensable ratings for limitation of extension of each knee, along with the ratings already assigned for limitation of flexion. Under these circumstances, the Board finds that the regular schedular standards provide sufficient bases upon which to rate the veteran's disabilities (and, hence, have not been rendered impractical), and that the assigned ratings adequately compensate him for his knee disabilities. Hence, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board concludes that there is no basis for staged rating of either knee, pursuant to Fenderson. Moreover, in adjudicating these claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. While the Board has resolved all reasonable doubt in the veteran's favor in granting separate 10 percent ratings for limited extension of each knee, the preponderance of the evidence is against assignment of any higher rating for either limited extension or limited flexion of either knee. See 38 U.S.C. § 5107(b) (West 2002 & Supp. 2007); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial rating in excess of 20 percent for limited flexion of the right knee due to tricompartmental arthritis is denied. A separate, initial 10 percent rating for limited extension of the right knee is granted, subject to the legal authority governing the payment of compensation benefits. An initial rating in excess of 20 percent for limited flexion of the left knee due to tricompartmental arthritis is denied. A separate, initial 10 percent rating, for limited extension of the left knee due to tricompartmental arthritis is granted, subject to the legal authority governing the payment of compensation benefits. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs