Citation Nr: 0812829 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 02-15 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for a right knee disability. ATTORNEY FOR THE BOARD Robert L. Grant, Associate Counsel INTRODUCTION The veteran had active service from January 1992 to March 2002 and from March 2003 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision of the VA Regional Office (RO) in Houston, Texas, which evaluated the veteran's right knee disability at 10 percent. In November 2003 and November 2006, the Board remanded this matter to the RO for additional development. Specifically, the Board requested that the RO update the veteran's file to include records from March 2003 to December 2003. Additional development having been accomplished, this matter is returned to the Board for appellate review. FINDINGS OF FACT 1. The veteran's right knee disability is manifested by slight recurrent subluxation or lateral instability. 2. The veteran's right knee disability is manifested by degenerative joint disease and complaints of pain, but without a compensable limitation of motion. CONCLUSION OF LAW 1. The criteria for an evaluation of 10 percent for slight recurrent subluxation or lateral instability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic Code 5257 (2007). 2. The criteria for an evaluation in excess of 10 percent for a right knee disability manifested by painful motion has not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A., 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic Code 5010(2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the veteran's claim 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 letters from the RO to the veteran dated in April 2002 and March 2006. The RO provided the requisite notification regarding the disability evaluation or the effective date that could be assigned in December 2007. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board acknowledges a recent decision from the United States Court of Appeals for Veterans Claims (Court) that provided additional 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. 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 that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the VA must provide at lease general notice of that requirement to the claimant. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008).. 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 was provided copies of the Statement of the Case, and Supplemental Statement of the Case, which contained a list of all evidence considered, a summary of adjudicative actions, all pertinent laws and regulation, including the criteria for evaluation of the veteran's disability, and an explanation for the decision reached. In the Board's opinion all of the above 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 been kept informed of the RO's actions in this case by way of the Statement of the Case, and been informed of the evidence considered, the pertinent laws and regulations and a rationale for the decision reached in denying the claim. 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, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. A review of service medical records indicates that the veteran sustained an injury to his right knee while playing football in March 2001. Range of motion was said to be limited and the examiner's assessment was to rule out meniscal tear. MRI's revealed posterior tears of the medial and lateral menisci and the veteran was taken to anterior cruciate ligament (ACL) reconstruction in October 2001. Post-operatively the veteran was said to have grade IV chondromalacia of the medial femoral condyle and grade II chondromalacia of the patella. Medical notes from twelve weeks after surgery indicate that the veteran demonstrated no instability and displayed a range of motion of 0 to 130 degrees with some laxity noted. A VA examination was conducted in May of 2002. The veteran reported pain in his right knee with running or other sports, as well as instability. On examination the veteran was said to have a nonantalgic gait and range of motion of the right knee was within normal limits. Increased laxity was noted with mild patellofemoral crepitus. The examiner's impression was history of anterior cruciate insufficiency and status post reconstruction with mild to moderate residual symptoms. Pursuant to the Board's remand, additional service medical records from 2003 were made a part of the record. Those records indicate that in June of 2003 the veteran reported with right knee pain and a bump below his knee where a screw was inserted. Pain was said to increase around the screw during running. An attempt was made in November 2003 to remove the screw but the procedure was halted at the veteran's request. In March 2005 the veteran was treated for complaints of right knee pain. By history the veteran reported that he re- injured his right knee while walking up a flight of stairs when he felt pain and his knee collapsed. A physical examination in late March 2005 showed swelling with a "fair active" range of motion. At that time the veteran requested a letter to return to his employment with the Department of Corrections, stating he had little pain now, and was able to walk and stand for long periods without pain. An additional VA examination was conducted in March 2006. By history, the veteran reported that in 2003 he experienced pain at the point where a screw was inserted during his anterior cruciate ligament surgery. In October of 2003 there was an attempt to remove the screw which was aborted due to complaints of pain by the veteran. The veteran denied swelling, locking, or instability of the right knee, but reported pain in the area of the screw. On examination the veteran demonstrated flexion to 140 degrees and extension to negative 10 degrees. Lateral and medial stress showed no laxity. The examiner's impression was post operative ACL repair with symptomatic pain caused by orthopedic hardware, as well as post operative and post traumatic early degenerative joint disease. The veteran essentially contends that the current evaluation assigned for his right knee disability does not accurately reflect the severity of that disability. 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). 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). The Board is also required to consider whether the veteran may be entitled to a staged rating. Therefore, in this claim, the Board has assessed the level of disability from the date of initial application for service connection to the present, determining whether the level of impairment warrants different disability ratings at different times over the life of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling, and moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is 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. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The Board notes that the veteran was initially evaluated under Diagnostic Code 5259 for removal of semilunar cartilage that is symptomatic. Given that the veteran has been found to have laxity and instability, and that the veteran has been diagnosed with chondromalacia, as well as post operative and post traumatic early degenerative joint disease, the Board concludes that Diagnostic Code 5010 for traumatic arthritis and Diagnostic Code 5257 for recurrent subluxation and lateral instability more closely approximate the veteran's disability. Based upon the above the Board concludes that the criteria for an evaluation of 10 percent for slight recurrent subluxation or lateral instability have been met. After ACL reconstruction in October 2001 the veteran was post- operatively noted to have displayed a range of motion of 0 to 130 degrees with some laxity. At the veteran's May 2002 VA examination, range of motion of the right knee was within normal limits, but increased laxity with mild patellofemoral crepitus was noted. The veteran reported in March 2005 that his knee collapsed while climbing stairs. Based upon these factors the Board concludes that the veteran has met the criteria for slight lateral instability under Diagnostic Code 5257 (2007). Additionally, while the veteran's knee disability was previously evaluated under Diagnostic Code 5259 and assigned a 10 percent rating, it may better be evaluated on the basis of the resulting limitation of motion or painful motion. After surgery in October 2001 the veteran was post- operatively found to have grade IV chondromalacia of the medial femoral condyle and grade II chondromalacia of the patella. An additional VA examination was conducted in March 2006, and the examiner's impression was post operative ACL repair with symptomatic pain caused by orthopedic hardware, as well as post operative and post traumatic early degenerative joint disease. As stated above, the appropriate rating for a knee joint with documented degeneration and painful motion, but no loss of range of motion, is 10 percent under Diagnostic Codes 5010 and 5003, as well as 38 C.F.R. § 4.59. Accordingly, this aspect of the veteran's knee disability remains 10 percent disabling. However, as noted above, an additional 10 percent rating for instability has been granted. ORDER An initial evaluation of 10 percent for recurrent subluxation or lateral instability of the right knee is granted. An initial evaluation of 10 percent for painful motion of the right knee is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs