Citation Nr: 0811841 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-29 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for chondromalacia, left knee. 2. Entitlement to an evaluation in excess of 10 percent for chondromalacia, right knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1969 to April 1971 and from July 1980 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the New York, New York Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that in his November 2004 notice of disagreement, the veteran brought a claim of clear and unmistakable error (CUE) in a March 1990 RO decision. In December 2004, the RO sent the veteran a letter stating that the March 1990 decision was upheld by the Board in October 1990, and thus the March 1990 RO decision had been subsumed by the Board decision. The RO indicated that if the veteran wanted the Board to reconsider its October 1990 decision, he could file a motion for reconsideration directly with the Board. As the veteran has not responded to the RO's December 2004 letter, the Board assumes that the veteran is not pursuing his CUE claim. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issues on appeal was obtained. 2. Left knee chondromalacia is presently manifest by left knee flexion to 120 degrees and extension to 0 degrees without subluxation or instability. 3. Right knee chondromalacia is presently manifest by right knee flexion to 140 degrees and extension to 0 degrees without subluxation or instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2007). 2. The criteria for a rating in excess of 10 percent for right knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the veteran in correspondence from the RO dated in August 2004. That letter notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claims, identified the veteran's duties in obtaining information and evidence to substantiate his claims, and requested that the veteran send in any evidence in his possession that would support his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in April 2006. For an increased-compensation claim, section § 5103(a) 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. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, 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. Here, the notification requirements enumerated in Vazquez- Flores have not been satisfied. While correspondence from the RO dated in August 2004 satisfied many of the requirements of the VCAA, the letter did not inform the veteran that he needed to show the effect that the worsening of his symptoms had on his employment and daily life. The letters also did not specifically describe the requirements of the applicable Diagnostic Codes. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that 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 that 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. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). In this case, the Board finds that the Vazquez-Flores v. Peake notice error did not affect the essential fairness of the adjudication because the veteran demonstrated that he had actual knowledge of what the Diagnostic Codes required to entitle him to the benefit sought. He demonstrated this knowledge by quoting from the applicable Diagnostic Codes in his November 2004 notice of disagreement and August 2005 VA form 9. Thus, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the notice error did not affect the essential fairness of the adjudication. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Law and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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(West 2002); 38 C.F.R. § 4.1 (2007). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the analysis in this decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2007). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses are prohibited. 38 C.F.R. § 4.14 (2007). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). VA is free to favor one medical opinion over another provided if it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2007). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2007). 500 3 Arthritis, degenerative (hypertrophic or osteoarthritis): Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct 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. In the absence of limitation of motion, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 10 Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic code 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007). 525 7 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2007) 5260 Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2007) 5261 Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2007) 38 C.F.R. § 4.71, plate 2 (2007) The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2006). "[F]unctional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded." Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). Chondromalacia, Left and Right Knees Service connection for bilateral chondromalacia was established by an RO rating decision issued in May 1971, and noncompensable ratings were assigned for each knee. That decision was based on the veteran's service records. A rating action in March 1990 increased the rating for the left knee disorder, while keeping the right knee noncompensably rated. The veteran's claim for a higher rating for each knee was received in July 2004. A private treatment record from May 2004 show that the veteran complained of weakness within his knees and problems going up and down stairs. The examiner noted crepitus throughout a good range of motion with minimal tenderness surrounding the patella, more significant on the left than the right. No significant swelling or effusion was noted. X-rays revealed mild to moderate degenerative joint disease with chondromalacia patella. On a follow-up visit in June 2004, the examiner noted a slight overall valgus deformity. Bilateral patellofemoral pain with bilateral patella grind was observed. Trace joint line discomfort was exhibited upon palpation. No gross ligament laxity was present. Range of motion studies revealed that extension was to 0 degrees and flexion was to 115 degrees with crepitus and discomfort. A private treatment record from July 2004 indicated that the veteran's knee flexion and extension were within normal limits. In his claim for increased ratings for his knees, received in July 2004, the veteran stated that after spending time on his knees painting the baseboards in his house, he had serious problems walking for the next six weeks. He said he could not fully stand or extend his knees when walking up stairs, and he had to walk down the stairs sideways. He reported experiencing pain, stiffness, and swelling in his knees over the years. He said he had to adjust his level of physical activities due to problems with his knees. On VA orthopedic examination in August 2004, the veteran reported a flare-up of knee pain while working on the baseboards of his house. He said he got flare-ups with changes in the weather, going up and down stairs excessively, and when he worked on his knees. He was taking Celebrex and Motrin. He did not use a brace or an assistive device. He said he had to take time off from work when he experienced flare-ups. On objective examination, no acute effusion was noted in either knee. A full range of motion was observed bilaterally. Normal pain was noted on the range of motion of the right knee, and some crepitation without pain was observed on the range of motion of the left knee. The physician found no instability of either knee. Repetitive bending was unlimited in both the right and left knees. A diagnosis of chronic chondromalacia patellae and degenerative arthritis, right and left knees was given. The veteran complained of knee joint pain and stiffness during a June 2005 VA examination. He said that bending on both knees was painful. No instability, subluxation, locking, fatigability, flare-ups, or lack of endurance of the knees were noted. The veteran did not use crutches, braces, a cane, or corrective shoes. It was observed that the veteran was employed and could perform daily routine activities. Lifting, pushing, and pulling were noted to be possible with both knees. The examiner noted no deformity or swelling of the right knee. Crepitus was observed on motion of both knees. Flexion of the right knee was to 140 degrees without pain. Extension of the right knee was to 0 degrees without pain. Flexion of the left knee was to 120 degrees without pain, and extension was to 0 degrees without pain. The joints were not painful in motion. No additional limitation of pain, fatigue, weakness, or lack of endurance was present following repetitive use. There was no painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, or abnormal movement of both knees. Guarding of the movement of the right and left knees was noted. X-rays revealed mild degenerative changes in the suprapatellar region. The diagnosis was degenerative joint disease of both knees. It was additionally noted that the effect of the condition on the veteran's usual occupation was none. In the veteran's VA form 9 dated in August 2005, the veteran said that he had lost three days from work due to a severe incapacitating exacerbation. He said he had experienced other incapacitating exacerbations during the year. Based on the evidence of record, the Board finds that a rating in excess of 10 percent for each knee is not warranted throughout the entire period of the appeal. The Board observes that the presence of patellar chondromalacia and degenerative arthritis has been confirmed by X-ray reports from May 2004 and June 2005. Painful motion has been observed by VA examiners in August 2004 and June 2005. Right and left knee flexion was noted to 115 degrees and extension to 0 degrees in June 2004. Flexion and extension were within normal limits in July and August 2004. Flexion of the right and left knees was to 125 degrees or greater, and extension was to 0 degrees in June 2005. Consequently a 10 percent rating, but no higher, is warranted for degenerative arthritis in each knee. The veteran has claimed that in addition to the 10 percent ratings he currently has under Diagnostic Code 5003, he is entitled to additional ratings under Diagnostic Code 5757. Diagnostic Code 5757 provides evaluations for recurrent subluxation or lateral instability. VA examinations in August 2004 and June 2005 stated that the veteran had no instability or subluxation in his knees. Thus, an additional evaluation under Diagnostic Code 5757 is not warranted. The Board has considered alternative rating criteria but has determined that none would result in a higher evaluation for the veteran's left or right knee disorders. The medical evidence does not demonstrate any ankylosis (Diagnostic Code 5256), removal of semilunar cartilage (Diagnostic Code 5258), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263). Therefore, these diagnostic codes are factually inapplicable in this case. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Finally, the Board finds that the service-connected chondromalacia of the left and right knees is not so unusual or exceptional as to render impractical the application of the regular schedular standards at any time during the pendency of the evaluation period. 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that the disorder has not necessitated frequent periods of hospitalization, and although the veteran has stated that he had to miss three days of work due to an incapacitating exacerbation, there is no objective evidence that it has resulted in marked interference with his employment. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the veteran's claim. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an evaluation in excess of 10 percent for chondromalacia, left knee is denied. Entitlement to an evaluation in excess of 10 percent for chondromalacia, right knee is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs