Citation Nr: 0814480 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-25 754 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a right knee injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Timothy D. Rudy, Associate Counsel INTRODUCTION The veteran served on active duty from May 1965 to November 1972. The present matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision in which the RO, inter alia, denied the veteran's claim for a higher rating for his service-connected residuals of a right knee injury. In March 2004, the veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in June 2004, and the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2004. The RO continued the denial of the claim for an increase in an April 2005 supplemental SOC (SSOC). In August 2007, the Board remanded this matter to the RO (via the Appeals Management Center (AMC), in Washington, D.C.) for further action, to include arranging for the veteran to undergo VA orthopedic examination. After accomplishing the requested action, the RO/AMC continued the denial of the claim on appeal (as reflected in a January 2008 SSOC) and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The residuals of the veteran's right knee injury consist of arthritis with pain and noncompensable limitation of flexion, but no ankylosis, instability, dislocated semilunar cartilage, or impairment of tibia and fibula, and there is no other evidence of significant functional loss. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of a right knee injury are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA 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; (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). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Recently, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the United States Court of Appeals for Veterans Claims (Court) has also held that, in rating cases, VA must notify the claimant that, to substantiate a claim for an increased rating: (1) 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 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. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a November 2003 pre-rating letter provided notice to the veteran regarding what information and evidence was needed to substantiate the claim for an increased rating for his service-connected right knee disability, what information and evidence must be submitted by the appellant, what information and evidence would be obtained by VA, and the need for the appellant to submit any further evidence in his possession that is relevant to the claim. The veteran was provided notice of the criteria for higher ratings for his knee disability in the June 2004 SOC (which suffices for Dingess/Hartman). An August 2007 letter informed the veteran how disability ratings and effective dates are assigned, and the type of evidence that impacts those determinations, also consistent with Dingess/Hartman. After issuance of each notice described above, and opportunity for the appellant to respond, the January 2008 SSOC reflects readjudication of the claim. Hence, the veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); 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 in an SOC or SSOC, is sufficient to cure a timing defect). Although the record does not include a single notice letter that reflects the specificity addressed in Vazquez-Flores, the Board finds that any such procedural defect does not constitute prejudicial error in this case because of the evidence of actual knowledge on the part of the veteran and other documentation in the claims file reflecting such notification that a reasonable person could be expected to understand what was needed to substantiate the claim. See Sanders v. Nicholson, 487 F. 3d 881 (Fed. Cir. 2007). The Board notes that, in the November 2003 letter, the RO listed examples of the types of medical and lay evidence that are relevant to establishing entitlement to increased compensation. Read together with the June 2004 SOC, which included the pertinent rating criteria, and the August 2007 letter, which explained how disability ratings are determined, it appears the general notice requirements of Vazquez-Flores have been satisfied. To whatever extent such notice is deficient, the veteran's written statements and his representative's April 2008 written brief presentation reflect that they understood these requirements. Consequently, any error in this regard was "cured by actual knowledge on the part of the claimant." See Sanders, 487 F.3d at 889. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of the veteran's service medical records; private medical records submitted as part of the veteran's file from the Social Security Administration (SSA); outpatient treatment records from VA's Upstate New York Health Care System in Buffalo and from a VA clinic in Rochester; and reports of VA examinations. Also of record and considered in connection with this claim are various written statements provided by the veteran, and by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the veteran has been notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Factual Background August 2002 VA x-rays of the right knee were interpreted as revealing suspicion of small knee joint effusion and prominent anterior superior patellar degenerative spur of the quadriceps tendon insertion. An October 2002 VA orthopedic treatment record reflects that, on range of motion testing of the right knee, flexion was to 110 degrees and extension was to 0 degrees. No instability in the knee was noted. A suggestion of slight swelling was noted and some crepitant swelling. Pain was noted with patellar movement. Recent treatment consisted of conservative care, acetaminophen, and knee brace. It was noted that the veteran continued to have rather significant right knee pain which was worse when he stood or walked for a long period of time. The examiner's assessment was minimal degenerative changes of the right knee and low grade synovitis. A Synvisc injection was administered into the right knee. A December 2002 VA medical record indicates that the veteran complained of pain, swelling and locking of his right knee. It was noted that the veteran was obese and ambulated with a slight limp. A probable torn meniscus in the right knee was assessed. He took Ibuprofen whenever necessary for pain. A February 2003 VA medical record notes that the veteran's pain in his right knee was 5 out of 10 and worse with weightbearing. The knee did not lock or give out completely, but the veteran had a sensation that the knee wanted to give out. He had difficulty descending stairs. He related that his knee pain was anterior, diffusely, and sometimes more focal, medially. His gait was slightly antalgic and favored the left and right lower extremity at times. Examination of the right knee revealed no erythema, no edema, and it was not warm to touch. Range of motion was 0 to 125 degrees with pain with extreme flexion anteriorly and medially. Impression was chondromalacia of the patella and probable osteoarthritis. There was no evidence of a meniscal tear. May 2003 VA x-rays of both knees revealed significant narrowing of the left knee lateral joint space with associated osteophytic spuring and subchondral sclerosis. No other abnormality was identified. September 2003 VA medical records reflect the veteran's continued complaints of right knee pain despite a cortisone injection. The veteran complained of increased pain with ambulation. Range of motion of the right knee was recorded as extension to 0 degrees and flexion to 110 degrees. The examiner assessed right knee pain and degenerative changes. A knee brace was reinstituted. A December 2003 VA orthopedic clinic medical record notes the veteran's third Synvisc injection and that he continued to have rather significant right knee pain. There was no significant abnormality of color or deformity of the knee. Palpation of the right knee elicited no abnormality of temperature. Some crepitance, tenderness and swelling were noted. The examiner assessed osteoarthritis of the right knee. On December 2003 VA examination, the veteran complained of daily pain, weakness, stiffness, and lack of endurance, but that the knee had not given way or locked. He denied any surgeries and dislocations or use of a cane or brace. He took Tylenol whenever necessary for his pain and had two cortisone shots in the past without any improvement. On physical examination, flexion of the right knee was to 90 degrees and extension was full, to 0 degrees. The right knee fatigued after repetitive movements after about one and one- half minutes. The veteran could extend the knee against resistance, but that created discomfort over the medial aspect. Moderate effusion in the right knee was noted and the patella was tender on palpation with some pain with movement. There was medial joint line tenderness and tenderness over the medial collateral ligament. The joints were intact when stressed with pain over the medial aspect. The VA examiner diagnosed a right knee disability with the veteran in obvious discomfort; the knee was fatigued after repetitive motions with increased pain and the veteran had an antalgic gait with walking. A March 2004 VA orthopedic clinic medical record indicates that the veteran decided against further Synvisc injections after he experienced a flushed feeling after his third injection the previous December. He reported a slight improvement in extending his knee, but said that he still awoke at night with pain. On passive range of motion, extension was to 0 degrees and flexion was 110 degrees. On active range of motion , extension was to minus 20 degrees and flexion to 90 degrees. Pain was noted to medial tibial plateau on palpation and no crepitus was appreciated. An April 2004 VA physical therapy note reflects that the veteran was referred to physical therapy for right knee pain. Range of motion of the right knee was recorded as to 0 degrees on extension and to 100 degrees on active flexion; and to 0 degrees on extension and to 110 degrees on passive flexion. The veteran reported moderate difficulty with ascending and descending stairs and severe difficulty with walking more than 100 feet before feeling discomfort and needing to sit down. He had moderate difficulty with sitting more than 30 minutes. He reported pain with extension of the right knee along the medial joint line. X-rays of the right knee showed chondromalacia and some spurring. It was noted that the veteran had severe difficulty ambulating because of knee and back pain. The physical therapist assessed decreased functional activity secondary to possible meniscus involvement on the right and arthritis to the joint line and on the back of the patella. Lateral translation of the right patella caused some clicking. Ambulation with a straight cane decreased the amount of weight through the right lower extremity, though the veteran still displayed gait deviation. The therapist also had the veteran ambulate with a Rollator and the veteran was able to support more of his body weight through his upper extremity and decrease wightbearing through the lower extremity. This provided a more normal gait pattern. The veteran was issued a straight cane as a Rollator was not available. May 2004 VA physical therapy records indicate that the veteran undertook some physical therapy classes for his right knee. Though his strength had not changed, the veteran was able to tolerate 10 pounds for knee flexion and extension without discomfort. Swelling was still noted in the right knee. The report of a May 2004 medical examination for SSA purposes notes a history of bilateral knee pain; knee extension to 0 degrees bilaterally, knee flexion to 110 degrees bilaterally as well as bilateral patella grind and medial and lateral joint line tenderness of both knees; and a diagnosis of probable underlying significant bilateral knee osteoarthritis. On January 2008 VA examination, the veteran complained of constant right knee pain, weakness, stiffness, swelling, heat, instability or giving way, and fatigability or lack of endurance. He said that his knee was drained once a year. He reported buckling in his knee five times within the past year. Flare ups of joint disease appeared to be precipitated by walking and he could not climb stairs during a flare-up. He was not taking any medications at this time. The veteran reported pressure and pain in his right knee when going down stairs. There were no episodes of dislocation or recurrent subluxation and no constitutional symptoms of inflammatory arthritis. He told the examiner that before he retired, it was hard to work when he lifted things and because he was on his feet for long periods of time. He needed to lose weight before knee replacement surgery. On physical examination, there was no swelling or erythema to the right knee and no effusion was noted. Range of motion was recorded as flexion to 110 degrees (out of 140 degrees), with pain throughout the entire range of motion, and extension to 0 degrees. The examiner noted that pain began at minus 20 degrees to 0 degrees. On repetition, the veteran maintained the above range of motion with some fatigue and increased pain. He appeared to have good strength in the leg and could push against resistance, but had increased pain and felt pressure sensation over the anterior aspect of the knee. The veteran did not use a cane for ambulation, had a slow gait, and appeared to favor the right leg somewhat with slowed movement. X-rays of right knee showed osteoarthritic changes most prominent in the medial joint space compartment with no evidence of fracture or dislocation. The examiner diagnosed osteoarthritis of the right knee. He also noted that the veteran did not have excessive fatigability but did show increased fatigue with repetitive use. There was no incoordination. The veteran had a considerable amount of pain throughout the range of motion at minus 20 degrees to 0 degrees on leg extension. The examiner noted that there was no additional loss of motion, weakened movement, excessive fatigabilty or incoordination during repetitive range of motion (although the veteran had increased pain), and there was no recurrent subluxation or lateral instability present. III. Analysis Disability evaluations are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 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. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 following analysis is undertaken with consideration of the possibility that a different rating may be warranted for different time periods. Historically, by rating action of April 1973, the RO granted service connection for residuals of a right knee injury, and assigned an initial 10 percent rating under the provisions of 38 C.F.R. § 4.71a, DC 5257 ( for rating subluxation or instability of the knee), effective November 15, 1972. In November 2003, the veteran filed his current claim for an increased rating. The right knee is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5299-5010, indicating a disability not listed in the rating scheduled that is evaluated, by analogy, o traumatic arthritis. See 38 C.F.R. §§ 4.20, 4.27. Under DC 5010, traumatic arthritis is rated as degenerative arthritis under DC 5003, which, in turn, provides states that 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-here, DC 5260 (for limitation of flexion) and 5261 (for limitation of extension); ankylosis of the knee is evaluated under DC 5256. If the limitation of motion of the specific joint or joints involved is not compensable under the appropriate diagnostic codes, then a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under DC 5260, a rating of 10 percent requires limitation of flexion of the leg to 45 degrees. A rating of 20 percent requires limitation of flexion to 30 degrees, and a rating of 30 percent requires limitation of flexion to 15 degrees. Under DC 5261, a rating of 10 percent requires limitation of extension of the leg to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. Standard range of right knee motion is from 0 degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. The VA General Counsel has held that a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). The VA General Counsel has further held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the DCs predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Considering the evidence in light of the above, the Board finds that the record presents no basis for a rating in excess of 10 percent for residuals of a right knee injury. Collectively, the aforementioned medical evidence reflects that the veteran's right knee flexion has been limited, at most, to 90 degrees. While, on a single occasion in March 2004, the veteran's passive range of motion was record as to minus 20, all other range of motion testing has revealed extension to 0 degrees, which is considered standard, or normal. Clearly, these findings do not meet the criteria for even a minimum, compensable 10 percent rating for limited flexion or limited extension under Diagnostic Codes 5260 and 5261 (which require flexion limited to 45 degrees and extension limited to 10 degrees, respectively). Given the objective findings of slightly (albeit, noncompensable) right knee flexion, decreased strength, and tenderness, and the veteran's complaints of pain and stiffness, the RO appropriately assigned a 10 percent rating for residuals of a right knee injury, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010 (for rating arthritis). However, no more than a 10 percent rating is assignable under Diagnostic Code 5003 for arthritis affecting a major joint. Id. The record also provides no basis for assignment of a higher rating under any diagnostic code based on limitation of motion, even when functional loss due to pain is considered. For example, as indicated above, on January 2008 VA examination, right knee flexion was to 110 degrees and extension was to 0 degrees. the examiner also noted that the veteran could perform full right knee extension, but from minus 20 degrees to 0 degrees with significant pain, and noted that the veteran's right knee range of motion test results showed some change after repetitive motion testing for pain, weakness, and fatigability. Even considering these findings, there simply is no medical evidence that the veteran's pain, weakness, or fatigability is so disabling as to actually or effectively limit knee motion to such an extent as to warrant assignment of a higher rating under either Diagnostic Code 5260 or 5261. Moreover, no other diagnostic code provides a basis for assignment of a rating in excess of 10 percent for the right knee. Disabilities of the knee and leg are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263; however, the majority of these diagnostic codes simply do not apply to the veteran's service-connected knee disability. As it neither contended nor shown that the veteran's service-connected residuals of a right knee injury involves ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, there is no basis for assignment of any higher rating under Diagnostic Codes 5256, 5257, 5258, 5259, 5262, or 5263. See 38 C.F.R. § 4.71a. The veteran's right knee disability also is not shown to involve symptoms that would warrant evaluating the disability under any other provision of VA's rating schedule. For all the foregoing reasons, the claim for a higher rating for residuals of a right knee injury 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 assignment of any higher rating, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 10 percent for residuals of a right knee injury is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs