Citation Nr: 0812344 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-21 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for status post, surgical repair, bony exostosis, right anterior tibial tubercle (right knee), for the period from May 28, 2004 to June 13, 2004. 2. Entitlement to an evaluation in excess of 10 percent for status post, surgical repair, bony exostosis, right anterior tibial tubercle (right knee), for the period since September 1, 2004. 3. Entitlement to an evaluation in excess of 20 percent for a right shoulder disability. 4. Entitlement to an evaluation in excess of 10 percent for a left shoulder disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Buck, Associate Counsel INTRODUCTION The veteran served on active duty from October 1972 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. The Board remanded the increased evaluation claim for the right lower extremity disability in decisions dating in November 2006 and October 2007. The increased evaluation claims for the bilateral shoulders were discussed in the introduction section of the Board's November 2006 remand. Specifically, it was noted that when read liberally, as required by law, the veteran's July 2005 Substantive Appeal amounted to a notice of disagreement (NOD) on the bilateral shoulder ratings. The RO, through the Appeals Management Center (AMC), was instructed to take action on that NOD. None has been taken. The issues are therefore included above and must now be remanded. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that an unprocessed notice of disagreement should be remanded, not referred, to the RO for issuance of a statement of the case). They are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. Additionally, the RO received a VA Form VA Form 21-4138, Statement in Support of Claim, on January 13, 2006, which indicated the veteran's desire to initiate a claim for service connection for a low back disorder. It does not appear that any action has been taken on this claim, though the Board recognizes that the file has been in the hands of AMC and the Board since that time. The RO is reminded of this outstanding claim. FINDINGS OF FACT 1. For the period from May 28, 2004 to June 13, 2004, the veteran's right lower extremity disability manifested by pain and swelling, with slight instability, but without documented limitation of motion. 2. For the period since September 1, 2004, the veteran's right lower extremity disability has manifested by normal extension and limitation of flexion to 115 degrees, with pain and stiffness. There were also frequent episodes of the knee giving out directly following the June 2004 surgery, which tapered off to occasional episodes shortly thereafter. 3. Throughout the appeal period, the veteran's right lower extremity disability has caused the wholly sensory symptom of numbness over the surgical site. 4. At no point during the appeal period has there been evidence of ankylosis of the knee joint or malunion of the tibia and fibula. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for instability due to status post, surgical repair, bony exostosis, right anterior tibial tubercle (right knee), for the period from May 28, 2004 to June 13, 2004, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5257 (2007). 2. The criteria for a rating in excess of 10 percent for instability due to status post, surgical repair, bony exostosis, right anterior tibial tubercle (right knee), for the period since September 1, 2004, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5257 (2007). 3. The criteria for a separate 10 percent rating for numbness associated with status post, surgical repair, bony exostosis, right anterior tibial tubercle (right knee), are met throughout the appellate period. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8521 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in June 2004, the agency of original jurisdiction (AOJ) provided notice to the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the AOJ notified the veteran of information and evidence necessary to substantiate the claim for an increased rating, indicating that he must show that his disability had increased in severity. This notice included information and evidence that VA would seek to provide and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claim. In December 2006, the veteran was further notified of the processes by which effective dates and disability ratings are established. This correspondence indicated that evaluations are based on the ratings schedule and assigned a rating between 0 and 100 percent, depending on the relevant symptomatology. It instructed the veteran to tell VA about, or give VA, any medical or lay evidence demonstrating the current level of severity of his disability and the effect that any worsening of the disability has had on his employment and daily life. It specifically listed examples of such evidence, such as on-going treatment records, Social Security Administration determinations, statements from employers as to job performance, lost time, or other pertinent information, and personal lay statements. Although neither letter provided the veteran with at least general notice of the rating criteria by which his disability is rated, such notice was provided the veteran in the February 2007 supplemental statement of the case. See Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008). Although fully compliant notice was accomplished after the initial denial of the claim, the AOJ subsequently readjudicated the claim based on all the evidence in November 2007. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the veteran was not precluded from participating effectively in the processing of his claim and the late notice did not affect the essential fairness of the decision. The otherwise defective notice has resulted in no prejudice to the veteran. VA has done everything reasonably possible to assist the veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. The veteran has been medically evaluated in conjunction with his claim. The duty to assist has been fulfilled. Disability Evaluations The veteran seeks a higher disability evaluation for his service-connected right lower extremity disability. Such evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the current level of disability is of primary concern in a claim for an increased rating; and the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection was established for bony exostosis of the right tibia by rating decision in March 1993 and was evaluated as 10 percent disabling under DC 5299-5257. This means that the disability was analogously rated under the code for other impairment of the knee. See 38 C.F.R. §§ 4.20, 4.27 (2007). This is appropriate, as per the treatment records, it appears that the bony exostosis is on the lateral side of the knee. The veteran brought his current claim for an increase in May 2004, based in part on an upcoming surgery in June 2004. By rating decision in October 2004, the disability was recharacterized as status post surgical repair, bony exostosis, right anterior tibial tubercle (right knee). The evaluation was increased to 100 percent as of the date of that surgery, June 14, 2004, and extended through August 31, 2004 under 38 C.F.R. § 4.30 (2007). After that period of convalescence, the rating was returned to 10 percent, this time analogously under DC 5099-5015. The veteran filed a timely appeal with respect to his pre- and post-surgery 10 percent rating. All applicable diagnostic criteria are discussed below. DC 5015 refers to new, benign growths of bones, and it is found in the rating criteria for musculoskeletal disabilities at 38 C.F.R. § 4.71a (2007). The note following the code indicates that it will be rated based on limitation of motion of the affected parts, which in this case is the knee and leg. The limitation of motion codes referable to the knee and leg are found at 38 C.F.R. § 4.71a, DCs 5256, 5260, 5261. First, DC 5256 rates based on the presence of ankylosis, or immobility of the joint. As the veteran has movement in his knee joint, this code is inapplicable. Under DC 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is warranted. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to more than 20 degrees warrants higher still ratings. As the veteran has a total (100 percent) rating from June 2004 through August 2004, the evidence prior to and proceeding from that time will be discussed. Outpatient clinical records date from January 1996 to December 2006. They show that in March 2004, the veteran reported having significant knee pain for the prior two weeks. Swelling was noted. Orthopedic consultation revealed a tibial tubercle (or nodule attached to the tibia, near the knee). A May 2004 surgical consult noted swelling and extreme tenderness. There was full extension, and the ligaments were noted to be stable. This is the last relevant medical entry prior to June 2004 surgery. The veteran's concurrent statements indicated generally that his disability had become worse and would require surgery. Based on this evidence, a rating based on flexion is not available, as there is no measurement of flexion on which to base it. Regarding extension, the veteran was noted to have the full range to zero degrees. Thus, without demonstrated limitation of motion, no rating can be assigned under either DC 5260 or 5261. The criteria for disabilities of the knee and leg also provide for ratings based on other impairment of the knee. In particular, DC 5257 rates based on recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257 (2007). Slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. Here, the veteran's ligaments were noted to be stable leading up to the surgery. Also, the veteran had provided no history of subluxation or instability (giving way) of the joint at that time. However, he did testify before the Board in January 2006 that he experienced instability at that point. Giving the veteran the benefit of the doubt, a 10 percent rating, and no higher, is warranted for slight instability prior to the 100 percent rating convalescent period. Since the end of the convalescent period, the veteran has undergone two VA examinations. There are also outpatient clinical records and lay statements referable to the severity of the veteran's disability. Based on this evidence, a rating of 10 percent, and no higher, continues to be warranted. In an October 2004 follow up visit after the surgery, the veteran's flexion was limited to 21 degrees. His extension was limited to 2 degrees. He also reported that his knee was giving out about twice a day. Outpatient clinical records in November 2004 continue to show that the knee was giving way. By his December 2004 VA examination, however, he had made great gains in mobility. Specifically, his flexion was now limited to 115 degrees. He had full extension. While he continued to have complaints of pain, objective manipulation of the joint revealed no instability of the ligaments, nor any effusion (swelling) of the joint. He did not report any giving way at that exam. Nor do the outpatient clinical records through December 2006 show such symptoms. It appears that his disability had greatly improved since the surgery. The veteran confirmed in his Board hearing that after his surgery, he experienced frequent episodes of the knee going out without warning, causing him to fall. He also indicated that he continued to have pain and stiffness in the morning, which limited his activities at the start of the day, and that the knee occasionally gave out. At the request of the Board, the veteran underwent further VA examination in January 2007. At that time, he reported that his knee was still giving way on occasion, and that he was experiencing periodic swelling. His pain continued and he also had some numbness on the side of his knee. Range of motion testing revealed that he continued to have full extension (at zero) and limitation of flexion (on repetition) to 115 degrees. Mild atrophy was noted on the calf. There was also hypoesthesia, or reduced sensation, along the site of the tibial tubercle. Although objective testing of the ligament was normal, the physician did note the veteran's recent history of instability problems, with the knee giving out. To recap, with the exception of one occasion soon after surgery in October 2004, the veteran's range of motion in terms of flexion and extension has not been limited to the degree that would warrant a rating under DC 5260 or 5261. Again, that requires that flexion be limited to 60 degrees or more, and extension be limited to five degrees or more, neither of which has been shown. Despite the lack of evidence supporting limitation of motion, there is evidence of recurrent subluxation sufficient to warrant a rating under DC 5257. Objective examination of the veteran's knee has not shown instability of the ligaments. However, he reported in the course of treatment in 2004, as well as on exam in January 2007, that he had episodes of his knee giving out. He also credibly testified to the same in his hearing before the Board. Regarding the level of impairment, it is notable that the treatment notes are negative for similar complaints from January 2005 to December 2006. At most, then, the veteran's recurrent subluxation is indicative of slight impairment, and therefore warrants no more than 10 percent under DC 5257. The veteran has indicated that in addition to his symptoms of instability, he has numbness in his leg, on the side of his knee, where the surgery took place. See VA progress note, August 2004 (referring to a "pins and needles" feeling); see also January 2006 hearing testimony. At the January 2007 VA examination, the physician confirmed that there was "slight hypoesthesia" lateral to surgical sight. As there is competent medical and lay evidence of nerve involvement throughout the appellate period, an additional rating is appropriate. Diseases of the peripheral nerves are rated under criteria found at 38 C.F.R. § 4.124a (2007). The veteran has numbness on the lateral side of his right knee. Although the examiner in January 2007 did not name the affected nerve, it appears that the numbness is in the area of the common peroneal nerve. See Stedman's Medical Dictionary, 27th Ed., A-21, 1194, (c) 2000. Ratings referable to the common peroneal nerve are found in DC 8521. Under that criteria, the maximum 40 percent rating requires complete paralysis, which encompasses foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, loss of abduction of the foot, weakened adduction of the foot, and anesthesia covering the entire dorsum of the foot and toes. Incomplete paralysis is rated based on mild, moderate, and severe level of paralysis, and is rated at 10, 20, and 30 percent respectively. The regulation explains that the term "incomplete paralysis" with peripheral nerve injuries such as this indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Here, the medical evidence does not establish, nor does the veteran contend that he has, symptoms such as those contemplated by the description of complete paralysis of the nerve. He has, however, consistently referred numbness in the area. This is wholly sensory in nature, thus warranting an additional 10 percent rating for mild incomplete paralysis. As there are no additional neurological symptoms, it does not rise to the level of moderate or severe paralysis. Regarding other potentially applicable diagnostic codes, the evidence shows that the veteran has a tear in the medial meniscus. See magnetic resonance imaging scan of the knee in September 2004; see also VA examination in October 2004. This raises the question of the applicability of DC 5258. DC 5258 states that semilunar cartilage (that of the meniscus) which is dislocated (torn), with frequent episodes of "locking," pain, and effusion into the joint, warrants a 20 percent rating. There is evidence of pain, as well as occasional subjective complaints of swelling; however, x-rays of record do not reveal effusion into the joint, as required by the code. See, e.g., January 2007 x-ray. Nor has the veteran referred locking type episodes. Instead, he has consistently put forth that his knee gives out, or buckles, frequently, which would be the opposite effect of locking up. Presuming for the sake of argument that the giving way symptoms which he experiences are analogous to the locking contemplated by the code, this would result in rating the veteran's subluxation and instability twice, as he already has a rating for those symptoms under DC 5257. To do so would violate the law against pyramiding, which specifically states that the evaluation of the same manifestations under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2007). Therefore, an additional rating based on DC 5258 is not warranted. Higher ratings in the knee and leg criteria are provided when there is malunion or nonunion of the tibia and fibula. The evidence does not demonstrate such deformity in this veteran's case. In sum, a 10 percent rating is appropriate both before and after the veteran's June 2004 surgery and subsequent convalescent period, under 38 C.F.R. § 4.71a, DC 5257, based on slight instability of the joint. Additionally, a separate 10 percent rating is appropriate for the veteran's neurological symptoms throughout the appellate period under 38 C.F.R. § 4.124a, DC 8521. As his disability has remained relatively stable throughout the appeal, staged ratings are not necessary. ORDER An evaluation in excess of 10 percent for instability due to status post, surgical repair, bony exostosis, right anterior tibial tubercle (right knee), for the period from May 28, 2004 to June 13, 2004, is denied. An evaluation in excess of 10 percent for instability due to status post, surgical repair, bony exostosis, right anterior tibial tubercle (right knee), for the period since September 1, 2004, is denied. A separate 10 percent rating for numbness associated with the status post, surgical repair, bony exostosis, right anterior tibial tubercle (right knee) is granted, subject to regulations applicable to the payment of monetary benefits. REMAND In his July 2005 VA Form 9, Substantive Appeal, the veteran indicated his disagreement with the October 2004 rating decision denying increased evaluations for his service- connected bilateral shoulder disabilities, and essentially expressed a desire to appeal these ratings. Specifically, he pointed to inconsistencies in his VA examination (i.e., he contends that his left shoulder was examined, but his right shoulder was not) and that because of this, he did not feel that he was properly evaluated. This written communication to the agency of original jurisdiction was received within one year of the subject rating decision. It is, therefore, a timely notice of disagreement. To date, the RO has not issued a statement of the case on these issues. One must be issued on the claims of entitlement to higher ratings on the service-connected bilateral shoulder disabilities. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: A statement of the case with respect to the claims for increased ratings for the service-connected bilateral shoulder disabilities must be provided. The veteran and his representative should be advised of the requirement for filing a substantive appeal within 60 days of the mailing. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs