Citation Nr: 0813404 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 04-15 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial rating greater than 10 percent for left knee osteoarthritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The appellant ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran had active duty from April 1982 through January 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Service connection for residuals of a left knee injury was denied on multiple occasions, most recently by a rating decision in December 2002 on the basis that new and material evidence had not been presented to reopen the claim. After the veteran appealed that action, a rating decision in December 2005 granted service connection for left knee osteoarthritis and assigned a 10 percent rating, effective from October 2002. The veteran appealed both the rating that was assigned, as well as the effective date. Following a remand by the Board in September 2006, a rating decision in August 2007 assigned an effective date of November 30, 2001, for the grant of service connection for the left knee disability; a rating greater than 10 percent, however, remained denied. The Board notes that the issue of service connection for a right knee disorder was also before the Board in September 2006. At that time, the Board reopened the veteran's previously denied claim and remanded the case for further adjudication of that issue. The August 2007 rating decision granted service connection for right knee degenerative changes. The record does not reflect that the veteran has filed a notice of disagreement with either the rating or the effective date that was assigned for the right knee disability. Nor does the record reflect that the veteran has filed a notice of disagreement with the earlier effective date that was assigned for service connection for his left knee. Therefore, no issue concerning those issues is currently before the Board. The veteran testified at a hearing before the Board at the RO in June 2006; the undersigned Veterans Law Judge presided. The actions directed by the Board in the September 2006 remand having been completed, the case is now ready for final appellate consideration. FINDINGS OF FACT The evidence shows that the veteran's left knee osteoarthritis has been manifested throughout the appeal period by pain, particularly on activity and after sitting for prolonged periods. No examiner has reported significant limitation of motion, any instability of the left knee, or significant functional impairment due to the left knee. CONCLUSION OF LAW The criteria are not met for an initial rating greater than 10 percent for osteoarthritis of the left knee. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.4, 4.59, and 4.71a, Codes 5261-5003 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Analysis The present appeal involves the veteran's claim that the severity of his service-connected left knee disability warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service- connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board must also consider the effect of pain on those activities, if appropriate. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. 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). The Board notes that the current appeal arose from the rating assigned following the initial grant of service connection for residuals of the left knee disability. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) noted the distinction between a claim for an increased rating for a service-connected disability and an appeal from the initial rating assigned for a disability upon service connection. The Board will evaluate the level of impairment due to the disability throughout the entire period, considering the possibility of staged ratings, as provided by the Court in Fenderson. 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). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods, pursuant to Fenderson and Hart. Arthritis is rated on the basis of the extent of limitation of motion it causes. Codes 5003 and 5010. A compensable rating based on limitation of flexion of the knee requires limitation to at least 45 degrees. Code 5260. A compensable rating requires due to limitation of extension of the knee requires limitation to at least 10 degrees. Code 5261. Other impairment of the knee, with recurrent subluxation or lateral instability, warrants a 20 percent rating if the impairment is moderate and a 10 percent evaluation if the impairment is slight. Code 5257. However, since there is no medical evidence that the veteran's left knee has ever manifested any instability or subluxation, he cannot receive separate ratings for instability (under Code 5257) and arthritis (under Code 5003). See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997). See, too, VAOPGPREC 9-98 (August 14, 1998); Johnson v. Brown, 9 Vet. App. 7, 11 (1996). By the same line of reasoning, since he has maintained normal extension in his left knee, the veteran cannot receive separate ratings for limitation of flexion and extension. See VAOGPREC 9-2004 (September 17, 2004). The medical evidence shows that no examiner, VA or private, has ever reported limitation of flexion of the veteran's left knee to less than 125 degrees, and no examiner has noted that the veteran complained of painful motion on range of motion testing. However, the veteran has consistently complained of essentially constant and considerable pain in the knee, particularly after any activity, as well as after sitting for prolonged periods. The medical evidence indicates that the left knee has been injected on multiple occasions, although the veteran indicated to a VA examiner in September 2005 that the injections provided minimal relief. The veteran has reported that he uses a brace on his left knee and walks using a cane. However, the most recent VA examiner, in July 2007, stated that the veteran walked with a non-antalgic gait. Again, range of motion of the left knee was noted to be full and no instability was found. But a VA examiner in September 2003 commented that the veteran experienced a 15 percent increase in pain during flare-ups and a 15 percent reduction in range of motion after repetitive movements. He also indicated that the veteran demonstrated weakened movements and excessive fatigability after repetitive motion, although no incoordination was observed. On the other hand, the September 2005 VA examiner did not report such increased symptomatology and, in fact, stated that he did not see any functional limitation in the veteran's knees. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The veteran testified at a hearing at the RO in August 2005. He described the symptoms he experienced with his left knee, particularly the pain. He also stated that the knee would give out on him almost every day, especially when climbing stairs. The veteran also testified at a hearing before the Board in June 2006. At that hearing he similarly described his symptoms and also stated that he could no longer perform the duties as a truck driver due to his back and bilateral knee disabilities. He also indicated that he was attending college in pursuit of a degree in business management, under the auspices of VA's Vocational Rehabilitation program. Clearly, the reported clinical findings by all examiners do not strictly meet the criteria for a compensable rating under any applicable diagnostic code. However, the regulations provide that actually 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. Considering that the veteran has consistently reported significant pain in his left knee, as well as the functional limitations noted by at least one examiner, the Board finds that the impairment of the left knee warrants a 10 percent rating. But lacking any clinical findings indicative of further impairment - at any time during the appeal period - a higher rating cannot be assigned. For all the foregoing reasons, the claim for a greater initial rating for the left knee disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). II. Duties to notify and to assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). For an increased-compensation claim, § 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's 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. Vazquez-Flores, at 43-44. Although the veteran was notified generally concerning what needed to be shown to support a higher disability evaluation, he was not given the specific notice required by Vazquez- Flores prior to the assignment of his initial disability evaluation. Nonetheless, both the rating decision and the statement of the case and supplement thereto that discussed the assignment of a higher disability evaluation specifically informed him of the rating criteria that would be applied, and he had an opportunity to supply information or evidence concerning worsening or increase in severity of the disability at issue and the effect such worsening has on his employment and daily life. Moreover, the veteran testified at two hearings as to the effect his knee disability had on his daily activities and employment, and he similarly described those limitations to at least one VA examiner. Thus, the Board concludes that the veteran, in this instance, was not prejudiced by the lack of specific notice required by Vazquez-Flores prior to adverse decisions that are the subject of this appeal. In the present case, VA satisfied its duty to notify by means of a May 2002 letter from the agency of original jurisdiction (AOJ) to the appellant in conjunction with his claim for service connection. The letter informed the appellant of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. In cases like this one, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Moreover, the appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, including at two hearings. Also, in March 2006, the RO notified the veteran of the information and evidence necessary to establish the downstream elements of a rating and the effective date for a rating, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity, including at two hearings, to participate effectively in the processing of his claim and appeal. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. The law also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2007). This "duty to assist" ordinarily contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody. In this case, the Board finds that the duty to assist has been fulfilled. During the course of this appeal, the veteran has been afforded three VA compensation examinations, and private treatment records covering the entire period of the appeal have been received. No further development action is necessary. ORDER An initial rating greater than 10 percent for left knee osteoarthritis is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs