Citation Nr: 0813549 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-12 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for arthritis, right knee. 2. Entitlement to a disability rating in excess of 20 percent for residuals of right ankle injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from February 1984 to October 1984, with three years and six months prior active duty service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that denied the veteran's claims of entitlement to increased ratings for right knee arthritis, currently rated 10 percent disabling, and residuals of right ankle injury, currently rated 20 percent disabling. The veteran perfected a timely appeal of these determinations to the Board. In January 2008, the veteran appeared and offered testimony in support of his claim before the undersigned member of the Board. The veteran's testimony on that occasion has been transcribed and associated with his claims file. In his May 2005 claim, the veteran stated that he wanted a reevaluation of his service-connected right knee injury. The Board notes that the veteran is service connected and separately rated for right knee injury, severe, under Diagnostic Code 5257, arthritis of the right knee, under Diagnostic Code 5260-5010, and loss of muscle mass with scarring, right knee, under Diagnostic Code 7805-5311. While the RO adjudicated the veteran's claim as a claim for an increased rating for his arthritis of the right knee, it did not address the issue of entitlement to increased ratings for right knee injury, severe, under Diagnostic Code 5257, or for loss of muscle mass with scarring, right knee, under Diagnostic Code 7805-5311. At his January 2008 Board hearing, the veteran reiterated that the May 2005 claim had been for increased ratings in all of his service-connected and separately rated knee disabilities. Therefore, the matters of entitlement to increased rating for right knee injury, severe, currently rated 30 percent disabling, and loss of muscle mass with scarring, right knee, currently rated 10 percent disabling, are referred to the RO for the appropriate action. Also, in a March 2008 private medical treatment note, the veteran's private physician indicated that the veteran was unable to work due to his service-connected knee conditions. The Board finds that the submission of such evidence reasonably raises a claim of entitlement to a total disability rating based on individual unemployability (TDIU). As the RO has not yet addressed the issue of entitlement to service connection for TDIU, the matter is referred to the RO for the appropriate action. FINDINGS OF FACT 1. Considering all additional functional loss due to pain, weakness, excess fatigability, incoordination, lack of endurance following repetitive use, or other such factors not contemplated in the relevant rating criteria, the veteran's right knee arthritis most closely approximates limitation of extension to 15 degrees. 2. Considering all additional functional loss due to pain, weakness, excess fatigability, incoordination, or other such factors not contemplated in the relevant rating criteria, the veteran's right knee arthritis more closely approximates flexion limited to 60 degrees than flexion limited to 45 degrees. 3. There is no ankylosis of the right ankle. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent, but no more, for arthritis, right knee, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.25, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Codes 5003, 5010, 5161, 5256, 5260, 5261 (2007). 2. The criteria for a disability rating in excess of 20 percent for residuals of a right ankle injury have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.25, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Codes 5161, 5270-5274 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, a May 2005 letter to the veteran from the Agency of Original Jurisdiction (AOJ) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to an increased rating, and the division of responsibility between the veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), this letter essentially satisfied the notification requirements of the VCAA by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting that the veteran provide any information or evidence in his possession that pertained to the claim. Also, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the disability rating and effective date of the award. The veteran was provided this notice in March 2006. Thereafter, he was afforded an opportunity to respond, and the AOJ then subsequently reviewed the claim and issued a supplemental statement of the case to the veteran in April 2007. Therefore, any notice deficiencies related to the rating or effective date were subsequently remedied. Thus, the Board finds no prejudice to the veteran in processing the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). Furthermore, the Board notes the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez- Flores, the Court found that, at a minimum, adequate VCAA notice requires for an increased rating claim requires that: (1) VA notify the claimant that the claimant must provide, or ask 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; (2) 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 Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. The May 2005 and March 2006 letters notified the veteran that he should provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of his disabilities and the effect that worsening has on the veteran's employment and daily life. The March 2006 letter also notified the veteran that, should an increase in disability be found, a disability rating would be determined by applying relevant diagnostic codes, and provided examples of the types of medical and lay evidence that the veteran could submit or ask VA to obtain that were relevant to establishing entitlement to increased compensation. The Board notes that the notice letter sent to the veteran did not inform him of any specific measurement or test result needed in order to obtain a higher evaluation. However, the arguments made by the veteran and his representative at his January 2008 Board hearing, including arguments regarding the limitation of the veteran's range of motion due to his disabilities, reflect that the veteran actually had at least general knowledge of the criteria used to evaluate his disabilities, and specifically that such criteria involved measurements of range of motion. Moreover, the Board notes that the veteran was provided a medical examination by VA that included all measurements and tests relevant to the evaluation of his disabilities. Thus, the Board finds any inadequate notice with respect to any specific measurement or test result involved in evaluating the veteran's disabilities to be harmless error, and that the veteran is not prejudiced by a final decision on the merits of the case. Second, VA has a duty under the VCAA to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002). In this regard, the following are associated with the claims file: the veteran's service medical records, VA medical treatment records, private medical treatment records, a VA examination, the veteran's testimony at his January 2008 Board hearing, and written statements from the veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. The Board therefore determines that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. II. Increased Ratings The veteran argues that he is entitled to a disability rating in excess of 10 percent for right knee arthritis, and a disability rating in excess of 20 percent for residuals of right ankle injury. Currently, the veteran is service- connected for the following disabilities: right knee injury, severe, currently rated 30 percent; residuals of right ankle injury, currently rated 20 percent; arthritis, right knee, currently rated 10 percent; residuals of right foot injury, currently rated 10 percent; and loss of muscle mass with scarring, right knee, currently rated 10 percent. Disability evaluations are determined by comparing present symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is 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. In order to evaluate the level of disability and any changes in the veteran's condition, it is necessary to consider the complete medical history of the 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). Staged ratings are appropriate where there are multiple time periods with distinctly different 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. For an increased rating claim, VA focuses on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In addition, when evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). In the instant case, the veteran was afforded a VA examination in January 2006. With respect to his right knee, the veteran reported the following: that he had pain all day every day; that the knee swelled, locked, buckled, popped and grinded; that he wore no brace, but occasionally used a cane, that he was unable to run, stand for more than 20 minutes, sit for more than two hours, or walk more than an eighth of a mile; and that he last worked in July 2005 because of both his knee and his ankle. On physical examination of the knee, the following was noted: he walked with a limp, using no assistive device; he disrobed and put his pants back on with significant difficulty; right knee revealed 5/5 motor strength with flexion and extension; he had extension to 0 degrees with pain that diminished to 15 with repetition; he had flexion to 70 degrees with pain; and he had crepitus, no tenderness, and no instability. There was noted to be no DeLuca criteria, with no pain on range of motion or flare ups except as stated, with the joint having no addional limitations by pain, fatigue, weakness, or lack of endurance following repetitive use. With respect to his right ankle, the veteran reported that he had pain all day every day, that it swelled and clicked, that he did not use a brace, cane or crutch, and that he had the same activity restriction and job restrictions as with his right knee condition, with no flares. On physical examination of the right ankle, the following was noted: no pain on range of motion testing of the ankle; dorsiflexion and plantar flexion between 10 and 15 degrees with 5/5 motor strength; minimal eversion and no inversion about the ankle; no diminution of range of motion with repetitive testing; a diffusely enlarged ankle, with no pitting edema; 2+ distal pulses and normal sensation; and no DeLuca criteria. There was noted to be no pain on range of motion or flare ups except as stated, with the joint having no addional limitations by pain, fatigue, weakness, or lack of endurance following repetitive use. An April 2007 VA note indicates that the veteran became concerned that he might have diabetes mellitus because he became winded after playing basketball with his son. At his Board hearing in January 2008, the veteran indicated the following: his ankle was very painful and swelled up, that he had a special boot or cast make for his work boot, but it was so uncomfortable he could not keep it in is boot because it hurt; that he was formerly an industrial painter, but could not continue with that work because of problems with his ankle, and was now a commercial painter; that his ankle locked up; and that his knee locked up and was not stable. The veteran also submitted a March 2008 private medical treatment follow up note for his right knee, indicating that the veteran presently had pain at rest and with activities, that he had diminished strength and restricted motion, and that there was a sensation of giving way. The note also indicated that it appeared that the veteran was unable to work at present given the condition of his knee. A. Right knee arthritis The veteran's right knee arthritis is currently rated under hyphenated Diagnostic Code (DC) 5260-5010 for arthritis due to trauma, and is thus rated under DC 5003 for degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010; see 38 C.F.R. § 4.27. Under Diagnostic Code 5003, 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. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent 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, the disability is to be rated as follows: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of knee motion is rated under DC 5260 and DC 5261. Under DC 5260, the following evaluations are assignable for limitation of leg flexion: zero percent for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and 30 percent for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, the following evaluations are assignable for limitation of leg extension: zero percent for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and 50 percent for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same joint. VAOPGCPREC 9- 2004, 69 Fed. Reg. 59988, 59990 (2004). DC 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is rated 40 percent disabling. Unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling. Extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated 60 percent disabling. 38 C.F.R. § 4.71a, DC 5256. After reviewing the record, resolving reasonable doubt in the veteran's favor, the Board finds that the veteran's right knee arthritis most closely approximates the criteria for a 20 percent disability rating under DC 5261. On January 2006 VA examination, the veteran was noted to have extension to 0 degrees with pain, which diminished to 15 with repetition, and no pain on range of motion or flare ups except as stated, with the joint having no addional limitations by pain, fatigue, weakness, or lack of endurance following repetitive use. Therefore, considering all additional functional loss due to pain, weakness, excess fatigability, incoordination, lack of endurance following repetitive use, or other such factors not contemplated in the relevant rating criteria, the Board finds that the veteran's right knee arthritis most closely approximates limitation of extension to 15 degrees. Thus a disability rating of 20 percent is warranted under DC 5261. However, the Board does not find that a separate rating under DC 5260 is warranted in this case. Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees, a 10 percent rating is warranted for flexion limited to 45 degrees, and the most to which the veteran's right knee flexion has been noted to be limited has been 70 degrees, with pain. Also, in measuring right knee flexion to 70 degrees, with pain, the VA examiner noted that there was no pain on range of motion or flare-ups except as stated, with the joint having no addional limitations by pain, fatigue, weakness, or lack of endurance following repetitive use. Thus, even considering any additional functional loss due to pain, weakness, excess fatigability, incoordination, or other such factors not contemplated in the relevant rating criteria, the veteran's right knee arthritis more closely approximates flexion limited to 60 degrees than flexion limited to 45 degrees. As the veteran's right knee flexion does not more closely approximate the criteria for a compensable rating than those for a noncompensable rating for limitation of flexion under DC 5260, a separate, compensable rating for limitation of right knee flexion, in addition to the 20 percent rating for limitation of right knee extension, is not warranted. Moreover, the Board notes that any additional disability rating or any higher increased rating would be a violation of the "amputation rule", which provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. See 38 C.F.R. § 4.68. Amputation of the thigh at the middle or lower thirds warrants a 60 percent rating. 38 C.F.R. § 4.71a, DC 5161. Thus, as any increase in the veteran's disability ratings, beyond that granted here, would result in a combined rating for the veteran's knee, ankle, and foot disabilities, in excess of 60 percent, any such increase would be a violation of VA regulations. See 38 C.F.R. § 4.25. The Board also notes that, to the extent that the record reflects right knee instability or problems related to loss of right knee muscle mass, such symptoms are contemplated under the veteran's ratings for right knee injury, severe, currently rated 30 percent disabling, and loss of muscle mass with scarring, right knee, currently rated 10 percent disabling, which are not currently on appeal before the Board. Accordingly, a disability rating of 20 percent, but no more, is warranted for right knee arthritis. B. Residuals of a right ankle injury The veteran's residuals of a right ankle injury are currently rated under DC 5271. DC 5271 provides ratings based on limitation of extension of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling; marked limitation of motion of the ankle is rated as 20 percent disabling. 38 C.F.R. § 4.71a, DC 5271. DC 5270 provides ratings for ankylosis of the ankle. Ankylosis of the ankle in planter flexion less than 30 degrees is rated 20 percent disabling; ankylosis of the ankle in planter flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, is rated 30 percent disabling; ankylosis of the ankle in planter flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity, is to be rated 40 percent disabling. 38 C.F.R. § 4.71a, DC 5270. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. After reviewing the record, the Board finds that the veteran's residuals of a right ankle injury do not approximate the criteria for a 30 percent disability rating under any applicable diagnostic code. The veteran currently receives the maximum rating under DC 5271, and thus a higher rating under that code is not available. Furthermore, the only diagnostic code for an ankle disability under which a rating in excess of 20 percent is available is that for ankylosis of the ankle, and no ankylosis of the ankle has ever been noted in the record. See 38 C.F.R. § 4.71a, DCs 5270-5274. On January 2006 VA examination, the following was noted: no pain on range of motion testing of the ankle; dorsiflexion and planar flexion between 10 and 15 degrees with 5/5 motor strength. In this regard, the Board also notes that where the veteran is already receiving the maximum rating assignable on the basis of range of motion, and there is no ankylosis noted in the medical evidence, consideration of the provisions of DeLuca is not required. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). Moreover, the Board notes that the veteran is service- connected and separately rated for residuals of right foot injury. Thus, to the extent that his current symptomatology is properly contemplated under the diagnostic code for residuals of a right foot injury, such symptomatology is not properly considered in the current appeal for residuals of a right ankle injury. Finally, the Board again notes that any additional disability rating or any higher increased rating in this case, given the 20 percent rating granted for the veteran's right knee arthritis, would be a violation of the "amputation rule", which provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. See 38 C.F.R. § 4.68. Amputation of the thigh at the middle or lower thirds warrants a 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5161. Thus, given the 20 percent rating granted for the veteran's right knee arthritis, any further increase in the veteran's disability ratings would result in a combined rating for the veteran's knee, ankle, and foot disabilities, in excess of 60 percent. See 38 C.F.R. § 4.25. Therefore, any such increase would be a violation of VA regulations. Accordingly, a disability rating in excess of 20 percent for residuals of right ankle injury is not warranted. ORDER 1. Entitlement to a disability rating of 20 percent for arthritis, right knee, is granted, subject to the law and regulations governing the award of monetary benefits. 2. Entitlement to a disability rating in excess of 20 percent for residuals of right ankle injury is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs