Citation Nr: 0814289 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 97-23 950A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for residuals of left knee injury with chondromalacia. 2. Entitlement to a compensable evaluation for left knee degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from March 1981 to December 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1996 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In October 2000, the RO assigned a temporary total rating for convalescence following left knee surgery, from September 27, 1999 through October 31, 1999. There was a hearing at the RO before a Board member in August 2004. That Board member is no longer employed by the Board and the veteran indicated in May and August 2006 that she does not want any additional hearings. Thos matter was previously before the Board in October 2004 and July 2006. On those occasions, remands were ordered to accomplish additional development. FINDINGS OF FACT 1. Prior to June 14, 1999, and from November 1, 1999, the competent evidence demonstrates no more than slight left knee impairment due to recurrent subluxation or lateral instability. 2. From June 14, 1999 to September 27, 1999, the veteran had dislocated semilunar cartilage with frequent episodes of "locking" pain, and effusion into the left knee joint. 3. Throughout the rating period on appeal, the veteran's degenerative joint disease of the left knee has been productive of complaints of pain, fatigability, and swelling; objectively, she had extension to 0 degrees and flexion to no worse than 85 degrees, with objective evidence of pain and fatigue on movement. CONCLUSIONS OF LAW 1. Prior to June 14, 1999, and from November 1, 1999, the criteria for a disability rating in excess of 10 percent for residuals of a left knee injury with chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, Diagnostic Code (DC) 5257 (2007). 2. From June 14, 1999 to September 27, 1999, the criteria for a 20 percent disability rating for residuals of a left knee injury with chondromalacia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, DC 5258 (2007). 3. The criteria for a rating in excess of 10 percent for left knee degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, DC 5003 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. VA's duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In the present case, the unfavorable rating decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current § 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial rating decision, the RO did not err in not providing such notice. Rather, the veteran has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). For an increased-compensation claim, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase 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 demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA 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. In this case, letters sent to the veteran in May 2005, July 2005, and August 2005 satisfied the notice requirements under 38 C.F.R. § 3.159(b)(1). The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. Moreover, with respect to the Dingess requirements, the veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim. It is therefore inherent that the he had actual knowledge of the rating element of the claim. In addition, he was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in November 2007. Any questions as to the appropriate effective date to be assigned are moot as the claim has been denied. The Board acknowledges that the VCAA letters discussed above do not meet the requirements of Vazquez-Flores and are not sufficient as to content and timing, creating a presumption of prejudice. Nonetheless, such presumption has been overcome for the reasons discussed below. In this case, the veteran was provided with correspondence regarding what was needed to support his claim. Specifically, the rating criteria for evaluating a knee disability was provided to the veteran in the July 1997 statement of the case and in the November 2007 supplemental statement of the case. Moreover, the November 2007 supplemental statement of the case included the provisions of 38 C.F.R. § 3.321, which identifies impairment in earning capacity as a rating consideration. After the November 2007 notice, the veteran was given an opportunity to submit more evidence. Although the veteran has not raised any notice issues, the failure to provide complete, timely notice raises a presumption of prejudice, so that VA has the burden to establish that the veteran was not, in fact, prejudiced by the inadequate notice. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The presumption of prejudice is rebutted here, however, as will be discussed below. Based on the communications detailed above, the veteran can be expected to understand what was needed to support her claim. Moreover, her statements reflect her actual knowledge of what evidence was needed. In August 1997, she indicated that she has fluid in her knee. In a December 2000 statement, she indicated that she leans to the left often and that her knee goes out on her. In a November 2005 statement, she indicated that her knee was painful with standing and walking and that it gives out and swells. Finally, even though the veteran was not specifically told that evidence was needed of the impact of her disability on daily life and employment, during the course of the claim, she has indicated what the impact of her disability has been on her daily life and employment, as reflected by the above statements and others. Thus, notwithstanding the lack of notice, the veteran provided the required evidence. The veteran thus had a meaningful opportunity to participate in the adjudication process, so the veteran was not prejudiced by the delay in receiving all required notice. See Overton v. Nicholson, 20 Vet. App. 427, 439-444 (2006) (failure to provide timely notice is harmless if the claimant had a meaningful opportunity to participate in the processing of the claim). Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting her in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the veteran's post-service reports of VA and private treatment and examination. Moreover, the veteran's statements in support of his claim are of record, including testimony provided at a December 2004 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. In this regard, VA was advised in November 2006 that the veteran has been on Social Security Administration (SSA) benefits for over a year. However, there is no indication that SSA records contain any information relevant to the current claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased ratings Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2007). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 C.F.R. § 4.7. While the veteran's entire history is reviewed when assigning a disability evaluation, 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 the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Board concludes that the residuals of left knee injury have changed during the course of the claim and so staged ratings are warranted for them. The degenerative joint disease disability has not significantly changed and so a uniform rating is warranted for it. Throughout the rating period on appeal, the veteran has been assigned a 10 percent rating for residuals of a left knee injury with chondromalacia pursuant to DC 5257. That diagnostic code provides for a 10 percent rating for slight knee impairment with recurrent subluxation or lateral instability, and a 20 percent rating for moderate knee impairment due to recurrent subluxation or lateral instability. Moreover, DC 5258 provides for a 20 percent rating for dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint. The evidence of record includes a July 1996 VA examination reflecting complaints of the left give giving out. Objectively, there was slight effusion but no laxity. A September 1997 VA outpatient record again noted complaints of the left knee giving away. She had recently been fitted for a new brace. On examination in September 1998, the veteran complained that her knee tends to give way as she walks. The report indicated that she wore a neoprene knee brace. Objectively, the left thigh was 1 cm smaller in circumference than the right. However, there was no laxity in the left knee, nor was there effusion or increased warmth. In May 1999, x-rays revealed no joint effusion. In June 1999, the veteran reported that sometimes she uses a cane for stability. An MRI on June 14, 1999 revealed a lateral meniscus tear. On evaluation on August 3, 1999, the veteran complained of left knee pain recently aggravated over 3-4 months, with increased locking, catching, and giving way, and there was joint line tenderness and mild effusion. There was pain with McMurray's, but no audible or palpable click. Varus and valgus testing were stable, as was drawer testing and Lachman's. An MRI revealed a lateral meniscus tear. In September 1999, the veteran had left knee surgery with lateral meniscus debridement. By October 1999, she had moderate effusion. A temporary total rating was assigned from September 27, 1999 through October 1999. Based on the pertinent evidence as detailed above, it is determined that the veteran had not more than slight knee impairment due to recurrent subluxation or lateral instability for the period prior to June 14, 1999. Accordingly, an evaluation in excess of 10 percent under Diagnostic Code 5257 is not warranted for this portion of the rating period on appeal. However, the evidence shows a lateral meniscus tear on June 14, 1999. Additionally, in August 1999, the veteran complained of locking and pain for months and there was effusion. Accordingly, a 20 percent rating for dislocated semilunar cartilage is warranted between June 14, 1999, and the date of meniscus surgery, September 27, 1999. This rating may not be assigned simultaneously with a DC 5257 rating, as the symptoms are overlapping. 38 C.F.R. § 4.14 (2007). Instead, it should replace the DC 5257 rating from June 14, 1999 to September 27, 1999, as it is the greater benefit. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (change of Diagnostic Code must be explained). From November 1, 1999, the rating should revert back to DC 5257, with no more than the current 10 percent rating assigned. The September 1999 surgery debrided the semilunar cartilage. In finding that only a 10 percent evaluation is warranted from November 1, 1999, the Board acknowledges a February 2002 VA clinical record in which the veteran complained that her knee pain had progressively worsened since her surgery. Examination at that time revealed no edema or erythema, no joint line tenderness, and slight laxity with varus/valgus stress. McMurray's, Lachman's, and drawer signs were negative. The Board also acknowledges the veteran's complaints raised at her October 2002 VA examination. Specifically, she reported that sometimes her knee buckled and she needed to soak it and elevate it. She stated that she could not walk for very long due to pain. However, the objective evidence does not warrant a higher rating. Indeed, the examination showed antalgia favoring the left knee but there was no heat, redness, swelling, effusion, drainage, abnormal movement, or instability. Drawer and McMurray tests were negative. The impression was status post left knee arthroscopy, mild meniscus debridement with residual pain on range of motion. Moreover, subsequent VA examination in August 2005 revealed negative varus and valgus stress tests, Lachman's, and drawer signs, though McMurray's test was positive. On evaluation in December 2005, the veteran was walking with a cane. McMurray's, Lachman's, and drawer tests were negative. The January 2007 examination revealed stable cruciate and collateral ligaments and the veteran complained of pain on McMurray's test and internal torsion. The examiner stated that there was no recurrent subluxation or lateral instability. The above evidence does not show or nearly approximate moderate knee impairment due to recurrent subluxation or lateral instability since November 1, 1999, so no more than a 10 percent rating under DC 5257 should be assigned from that date onward. Moreover, there are no alternate diagnostic codes that could serve as a basis for a higher rating. To this point, the Board has considered only the manifestations of the veteran's left knee disability that are based on instability. However, in the present case, the competent evidence also reveals degenerative arthritis of the left knee. In this vein, the VA General Counsel has held that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997). Likewise, the VA General Counsel has also held that, when x- ray findings of arthritis are present and a veteran's knee disability is evaluated under Code 5257, the veteran would be entitled to a separate compensable evaluation under DC 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. In the present case, the veteran is already in receipt of a 10 separate percent evaluation for left knee degenerative joint disease pursuant to Diagnostic Code 5003. Thus, further discussion of VAOPGCPREC 23-97 and VAOPGCPREC 9-98 is unnecessary. However, the Board must consider whether, during the period in question, the veteran is entitled to a rating in excess of 10 percent for such arthritis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated based on limitation of motion of the affected joint. Limitation of leg motion is governed by DCs 5260 and 5261. DC 5260 concerns limitation of leg flexion. A noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. DC 5261 pertains to limitation of leg extension. Under that Code section, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. In the present case, VA examination in August 2005 revealed 110 degrees of active left knee flexion and 110 degrees of passive left knee flexion. Extension was to 0 degrees. Upon VA examination in January 2007, she had active flexion to 100 degrees active and passive flexion to 110 degrees, with zero degrees of extension. The evidence of record, as set forth above, does not show limitation of fails to flexion or extension consistent with the criteria for a 20 percent evaluation under DCs 5260 or 5261. However, the Board must consider whether the competent evidence establishes any additional functional limitation due to factors such as pain, weakness, incoordination or fatigability such that the veteran's disability picture is more nearly approximated by at least a noncompensable rating. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this regard, the veteran stated at her August 2005 VA examination that her left knee was stiff and painful. She also endorsed flare-ups with walking up and down stairs. Objectively, the examiner noted that the veteran's left knee motion was limited by pain from 90 to 100 degrees of motion. She was also limited by fatigue and weakness. Indeed, when asked to flex her knee 10 times, she had to stop after 4 repetitions because of pain and fatigue. Complaints of pain were also noted at her August 2004 hearing. At that time, she endorsed daily left knee pain. She stated that she could not walk much and could not keep her knee in a bent position. Despite the above, the evidence as a whole fails to demonstrate additional functional limitation such as to render the veteran's disability picture analogous to the next-higher 20 percent rating under either Diagnostic Code 5260 or 5261. Again, the veteran could flex her knee to 85 degrees at her most recent VA examination, and had extension to 0 degrees. Therefore, a rating in excess of 10 percent for the veteran's degenerative joint disease of the left knee is not warranted. At this juncture, the Board acknowledges VAOPGCPREC 9-2004 (September 17, 2004), where it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under diagnostic codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. As such, if the evidence of record reflects compensable loss of both flexion and extension of the left leg, the veteran would be entitled to the combined evaluation under Diagnostic Codes 5260 and 5261, per the combined ratings table in 38 C.F.R. § 4.25. Even when considering additional limitation of function due to factors such as pain and weakness, the evidence of record fails to reveal flexion or extension limited to even noncompensable levels. Therefore, assignment of separate evaluations for limitation of both flexion and extension is not warranted here. In sum, the evidence supports a 20 percent evaluation for the veteran's residuals of left knee injury with chondromalacia from June 14, 1999, to September 27, 1999. For the remainder of the rating period on appeal, no more than a 10 percent evaluation is warranted (excluding from consideration the period from September 27, 1999 until November 1, 1999, during which a temporary total rating is in effect). Moreover, the evidence does not support a rating in excess of 10 percent for degenerative joint disease of the left knee for any portion of the rating period on appeal for that disability. In reaching these conclusions, the benefit of the doubt doctrine has been applied where appropriate. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, the Board has also considered the propriety of an extra-schedular rating. In this regard, there have not been frequent periods of hospitalization due to the left knee disabilities. Additionally, marked interference with employment due to the veteran's left knee disabilities is not shown. The veteran resigned from the post office due to her knee going out, she stated in August 1997, but from there, she went to the VA to work. In May 1999, she reported that she had been placed on light duty the month before to help resolve an exacerbation of knee pain. She felt strong enough to return to work using a brace. In October 2002, the veteran reported that she was not working but she did not indicate why. In August 2005, she reported that she had worked as a counselor for about 15 months until December 2005. In August 2006, a note was written for her asking that she be allowed to stop training for a truck driving position because of increased knee pain. Currently, she apparently is not working as reflected by a November 2006 treatment record. The report, however, does not indicate that this is due to her service-connected left knee problems. Accordingly, referral for an extraschedular rating is not warranted. See 38 C.F.R. § 3.321 (2007). ORDER Prior to June 14, 1999, and from November 1, 1999, a rating in excess of 10 percent for residuals of a left knee injury with chondromalacia is denied. From June 14, 1999 to September 27, 1999 a 20 percent rating is granted for residuals of a left knee injury with chondromalacia, subject to the controlling regulations applicable to the payment of monetary benefits. A rating in excess of 10 percent for degenerative joint disease of the left knee is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs