Citation Nr: 0812724 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-03 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating higher than 30 percent for asthma. 2. Entitlement to an initial compensable rating for patello- femoral syndrome of the right knee. 3. Entitlement to an initial compensable rating for patello- femoral syndrome of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Motrya Mac, Associate Counsel INTRODUCTION This appeal arises before the Board of Veterans' Appeals (BVA or Board) from an October 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, NC that denied the benefits sought on appeal. (The veteran has since relocated to the jurisdiction of the RO in Newark, New Jersey.) The veteran, who had active service from July 2002 to July 2004, appealed that decision to the BVA and the case was referred to the Board for appellate review. FINDINGS OF FACT 1. The asthma is not manifested by a Forced Expiratory Volume at one second (FEV-1) of 40 to 55 percent of predicated value; FEV-1 to Forced Vital Capacity (FVC) (FEV- 1\FVC) of 40 to 55 percent of predicated value; required at least monthly visits to a physician for required care of exacerbations; or required intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. 2. The right knee disability is manifested by painful motion, but does not manifest recurrent subluxation or lateral instability, limitation of flexion to 45 degrees, or limitation of extension to 10 degrees. 3. The left knee disability is manifested by painful motion, but does not manifest recurrent subluxation or lateral instability, limitation of flexion to 45 degrees, or limitation of extension to 10 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent for asthma have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.96, 4.97, Diagnostic Codes 6602 (2007). 2. The criteria for an initial 10 percent rating for patello-femoral syndrome of the right knee have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.20, 4.27, 4.40-4.46, 4.71a, Diagnostic Code 5299-5257 (2007). 3. The criteria for an initial 10 percent rating for patello-femoral syndrome of the left knee have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.20, 4.27, 4.40-4.46, 4.71a, Diagnostic Code 5299-5257 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was accomplished by way of a letter from the RO to the veteran dated in May 2004 on the underlying claims for service connection, and such notice is valid since the veteran is appealing aspects of the rating decision which resulted from his initial claims. The Board acknowledges a recent decision from the United States Court of Appeals for Veterans Claims (Court) that provided addition guidance of the content of the notice that is required to be provided under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in claims involving increased compensation benefits. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In that decision, the Court stated that for an increased compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask the 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. 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 of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the VA must provide at least general notice of that requirement to the claimant. While the veteran was clearly not provided this more detailed notice, the Board finds that the veteran is not prejudiced by this omission in the adjudication of his increased rating claim. In this regard, the veteran is represented by a National Veterans' Service Organization recognized by the VA, specifically the Disabled American Veterans, and the Board presumes that the veteran's representative has a comprehensive knowledge of VA laws and regulations, including those contained in Part 4, the Schedule for Rating Disabilities, contained in Title 38 of the Code of Federal Regulations. In addition, the veteran and his representative were provided copies of the rating decision on appeal, the Statement of the Case and a Supplemental Statement of the Case, all of which combined to inform the veteran and his representative of the evidence considered, a summary of adjudicative actions, all pertinent laws and regulation, including the criteria for evaluation of the veteran's disabilities, and an explanation for the decision reached. Lastly, at the veteran's hearing before the BVA the criteria used to evaluate the veteran's disabilities were discussed. In the Board's opinion all of this demonstrates actual knowledge on the part of the veteran and his representative of the information to be included in the more detailed notice contemplated by the Court. As such, the Board finds that the veteran is not prejudiced based on this demonstrated actual knowledge. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). Sufficient medical opinions are of record so as to provide the Board with a sound basis on which to adjudicate the case. Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. Factual Background Service medical records are replete with treatment for asthma. On average, the lowest percentage of FEV-1 and FEV- 1/FVC ranged from 57 percent to 62 percent. In July 2002 the veteran was on prednisone taper. An evaluation in May 2004 indicated the veteran's FEV-1 before bronchodilator was 27 percent predicted and the FEV- 1/FVC was 70 percent predicted. After the bronchodilator FEV-1 was 37 percent predicted and FEV-1/FVC was 102 percent predicted. The examiner opined that a FEV-1 of 59 best represents the veteran's condition. The veteran was on Adair, Abluterol, Intel and Singular. The veteran reported seeing a physician about 10 times per year for his asthma. The May 2004 evaluation also showed that the veteran injured his knees and experienced pain, swelling and stiffness. Range of motion of the knees was flexion to 140 degrees and extension of 0 degrees. Range of motion was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination. The diagnoses for both knees were chronic patello-femoral syndrome with pain and stiffness with running and after a prolonged period of immobility. Pain had the major functional impact. Accompanying x-rays of the knees were normal. VA medical records reveal that in September 2004 the veteran's FEV-1 was 53.9 percent predicted; his actual FEV- 1/FVC percentage was 84 percent. In January 2005, his FEV-1 was 26.8 percent predicted before bronchodilator and 20.2 percent after; his actual FEV-1/FVC was 54 percent before the bronchodilator and 33 percent after. On VA examination in January 2005, the veteran reported going to the emergency room once for exacerbation of asthma. His medications included Tramadol, Naproxen, Cyclobenzaprine, Cromolyn Sodium, Montelukast, Formoterol Fumarate, Flunisolide inhalation and Albuterol. Moderate restrictive defect was noted on pulmonary function test (PFT) in September 2004. The examiner noted the veteran's new PFT was suboptimal. The veteran experienced daily shortness of breath with exertion. On VA examination for joints in January 2005, the veteran denied flare-ups or any problems with repetitive use. He did not report any interference with his job or daily activities. He denied locking and instability. Range of motion of both knees was extension to 0 degrees and flexion to 140 degrees, all without pain. There was no instability with varus, vagus, anterior and posterior stressing. The examiner concluded that there was no additional loss of joint function after repetitive use. On VA examination in April 2005, the veteran's FEV-1 was 66.3 percent predicted and his FEV-1/FVC was 70. After the bronchodilation, FEV-1 was 71 percent and FEV-1/FVC was 75 percent. The interpretation was moderate impairment due to restrictive and obstructive defects. In his Form 9 Appeal, the veteran requested a higher rating based on the use of corticosteroids. On VA examination in April 2006, the veteran's listed medications were Albuterol, Singulair, Intal, Flunisolide and Formoterol. The veteran saw his primary physician once every six months. The veteran complained of shortness of breath climbing 2 to 3 flights of stairs. Pre-bronchodilator, FEV-1 was 61.1 percent predicted, FEV-1/FVC was 68 percent. Post- bronchodilator FEV-1 was 72 percent predicted, FEV-1/FVC was 77 percent. The examiner noted the veteran was not taking any oral or parenteral steroids. On VA examination for the joints in April 2006, no dislocation was noted. The examiner indicated the veteran was a salesman. He could stand and walk for more than one hour. There was appreciably no pain on range of motion of the knee. Five repeated movements of the knee showed mild increase in pain. The range of motion showed essentially no change. There was no increase in weakness or fatigue found. There was mild increase in lack of endurance. The veteran indicated pain sometimes had a major functional impact. The examiner noted there was no ankylosis, instability or weakness. Objective painful motion was mild. During his Board hearing in September 2006, the veteran indicated that he was on steroids and inhalers. He stated his knee gives away, in particular the right knee gave away once in a while. The veteran denied that his knees and asthma interfere with his employment. Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While the veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. 38 C.F.R. §§ 4.44, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Asthma The veteran's asthma is rated under Diagnostic Code 6602. Under Diagnostic Code 6602, the criteria for the next higher 60 percent rating are PFT results that show a FEV-1 of 40 to 55 percent of predicated value; or FEV-1\FVC of 40 to 55 percent of predicated value, or; when the veteran has at least monthly visits to a physician for required care of exacerbations; or, when the veteran requires intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2007). The evidence has not demonstrated that the veteran on average had FEV-1 of 40 to 55 percent of predicated value; FEV-1\FVC of 40 to 55 percent of predicated value. In service the lowest percentage of FEV-1 and FEV-1/FVC approximately ranged from 57 percent to 62 percent. Post service, there was an isolated finding in January 2005 of FEV-1 as low as 20.2 percent and FEV-1/FVC was low as 33 percent. In September 2004 his FEV-1 was 53.9 percent. Nevertheless, these were isolated findings, overall service and post service medical records demonstrated FEV-1 and FEV-1/FVC were above 55 percent. The evidence also has not shown the veteran needs monthly treatment of exacerbations. While in the past the evidence showed he required treatment 10 times per year for his asthma, on his recent VA examination in April 2006, he indicated he saw his doctor twice per year. The veteran testified that he is on steroids. The evidence shows the veteran was on prednisone in service and after service has been on inhalation steroids; however, the evidence has not demonstrated the veteran requires intermittent courses of corticosteroids. The VA examiner in April 2006, reviewed the claims folder, examined the veteran and concluded that the veteran was not on oral or partenteral steroids. Therefore the criteria for a 60 percent rating for asthma have not met and an evaluation in excess of 30 percent is not shown to be warranted. 38 C.F.R. § 4.97, Diagnostic Code 6602. Right and Left Knees The bilateral knee disability is currently rated noncompensable under Diagnostic Code 5257. Under Diagnostic Code 5257, the criteria for a 10 percent rating, are either slight recurrent subluxation or slight instability. 38 C.F.R. § 4.71. Previously the veteran's knees were evaluated under Diagnostic Code 5019 by analogy to bursitis. Under that Diagnostic Code, the disability is rated by on limitation of motion of the affected part as for degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, ratings are based on the limitation of motion under the appropriate Diagnostic Code, but when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Code, a 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively conformed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5019. Other potentially applicable Diagnostic Codes pertain to limitation of motion of knee, and limitation of motion can be rated separately from recurrent subluxation or instability. Limitation of motion of the knee is rated under either Diagnostic Code 5260 (limitation of flexion) or Diagnostic Code 5261 (limitation of flexion). And a separate rating may be assigned for each, that is, for limitation of flexion and for limitation of extension. Under Diagnostic Code 5260, flexion limited to 45 degrees is 10 percent disabling, flexion limited to 30 degrees is 20 percent disabling, and flexion limited to 15 degrees is 30 percent disabling. Under Diagnostic Code 5261, extension limited to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling, and extension limited to 20 degrees is 30 percent disabling. Normal range of motion of the knee motion is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, "[t]he intent of the schedule is recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual 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. As for the next higher rating under Diagnostic Code 5257, although the veteran has complained of his knee giving way, no instability was found on VA examination in January 2005 and April 2006. As neither slight recurrent subluxation nor slight instability is shown, the criteria for 10 percent rating under Diagnostic Code 5257 have not been met. As for limitation of motion, on examinations, dated in May 2004, January 2005 flexion was 140 degrees and extension was to 0 degrees. On VA examination in April 2006, range of motion showed essentially no change and objective painful motion was mild. The Board finds the evidence demonstrated pain on movement in both knees, as evidenced by the May 2004 evaluation and April 2006 VA examination. 38 C.F.R. §§ 4.40, 4.71a, Diagnostic Codes 5003; DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore the veteran meets the criteria for a 10 percent rating under Diagnostic Code 5003. However, an evaluation in excess of 10 percent for each knee is not warranted because the medical evidence does not demonstrate the presence of instability, limitation of flexion or limitation of extension such that a compensable evaluation would be warranted under the relevant Diagnostic Codes. ORDER An initial rating higher than 30 percent for service- connected asthma is denied. Subject to the law and regulations governing the award of monetary benefits, an initial 10 percent rating for patello- femoral syndrome of the right knee is granted. Subject to the law and regulations governing the award of monetary benefits, an initial 10 percent rating for patello- femoral syndrome of the left knee is granted. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs