Citation Nr: 0814883 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 04-33 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased disability rating for right knee sprain, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The veteran served on active duty from July 1979 to August 1983. This matter came to the Board of Veterans' Appeals (Board) from a January 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The veteran requested a Board hearing, however, he withdrew that request in October 2004. The March 2004 notice of disagreement was also filed with regard to entitlement to service connection for left knee strain as secondary to the service-connected disability of right knee sprain. The veteran did not perfect an appeal with regard to the left knee issue. Thus, the left knee issue is not in appellate status. See generally 38 U.S.C.A. § 7105 (West 2002). FINDING OF FACT The veteran's right knee sprain is not manifested by moderate recurrent subluxation or lateral instability; or by flexion limited to 30 degrees or extension limited to 15 degrees. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 10 percent for right knee sprain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007) Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notification obligation in this case was accomplished by way of letters from the RO to the veteran dated in September 2004 and October 2007. The Board notes that the letters were not issued to the veteran prior to the initial adjudication of his claim, but any timing defects were cured by supplemental statements of the case issued in August 2006, January 2007, and in May 2007. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In any event, to the extent it could be argued that there was a notice or timing error, the Board finds that the veteran has been afforded a meaningful opportunity to participate in the adjudication of his increased rating claim and he has not been prejudiced in this regard. Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). Additionally, while the notices do not provide any information concerning the evaluation or the effective date that could be assigned should increased rating be granted, Dingess v. Nicholson, 19 Vet. App. 473 (2006), since this decision affirms the RO's denial of increased rating, the veteran is not prejudiced by the failure to provide him that further information. For an increased-compensation claim, section § 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 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. In this case there has clearly been no compliance with Vazquez since that judicial decision was just rendered in January 2008. However, it appears clear that a reasonable person under the facts of this case could be expected to know and understand the types of evidence necessary to show a worsening or increase in the severity of right knee sprain and the effect of that worsening on employment and daily life. The Board believes it significant that the veteran has been represented in the claims process by Disabled American Veterans, which organization represents numerous veterans. The Board believes it reasonable to expect that this service organization duly informs the claimants of the rating criteria and the types of evidence necessary to obtain higher ratings for service-connected disabilities. The Board finds that the veteran has had actual knowledge of the elements outlined in Vazquez and that no useful purpose would be served by remanding to the RO to furnish notice as to elements of his claim which the veteran has already effectively been made aware of. See the veteran's VA Form 9 dated in September 2004. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The evidence of record contains the veteran's service medical records and post-service VA and private medical records. The evidence of record also contains VA examinations performed in November 2003, July 2006, and March 2007. The examination reports obtained are fully adequate and contain sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). The veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). To the extent that VA has failed to fulfill any duty to notify and assist the appellant, the Board finds such error to be harmless error that would not reasonably affect the outcome of the appellant's claim. Therefore, the Board finds that the duties to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. Criteria & Analysis A July 1988 rating decision granted service connection for right knee sprain and assigned a noncompensable disability rating under Diagnostic Code 5257. A September 1997 rating decision assigned a 10 percent disability rating effective October 9, 1996. In 2003, the veteran filed an informal claim, seeking an increased rating. A January 2004 rating decision confirmed and continued the 10 percent rating under Diagnostic Code 5260. The veteran underwent a VA examination in November 2003. He reported daily pain in his right knee. He stated that he had not worked in two years. Upon physical examination, he was able to flex 65 degrees and had zero degrees of extension. The examiner detected no crepitation on flexion/extension. The cruciate and collateral ligaments appeared to be intact. The examiner assessed strain of the right knee. The veteran underwent another VA examination in July 2006. He reported that the pain in his knee was 5/10 in severity and, with activity, it went up to 9. He stated that the knee occasionally swelled and it gave way on him two times per month. He claimed that it was aggravated by standing for 10 minutes, walking one-and-one-half blocks, going up and down stairs, lifting ten pounds in weight, or driving twenty minutes. He reported occasional limping. He stated that he had not worked since 1990 when he unloaded trucks. Upon physical examination, the range of motion in the right knee was zero to 120 degrees, where pain began, and it ended at 125 degrees. He had inferior and mostly lateral tenderness of the right knee. He had slight crepitus with flexion. He had no fluid, laxity, instability, weakness, fatigability, or incoordination. The examiner diagnosed chronic sprain of the right knee with some limitation of motion, moderate symptoms, and minimal objective findings, and minimal disability without interim change. The veteran underwent another VA examination in March 2007. He reported right knee pain was 8/10 and was progressively increasing in intensity and frequency. He stated that he had two episodes of knee effusion over the previous 6 months. He claimed that he had to be careful going up and down steps or walking on uneven terrain because his knee would give way. He reported that he had not worked in 8 months as a warehouseman due partly to his right knee pain and disability. Upon physical examination, the examiner found no effusion. The medial and lateral collateral, as well as anterior and posterior cruciate ligaments, were stable and intact. Active range of motion was extension to zero degrees and flexion ranging from 110 to 120 degrees. The examiner noted that there was no weakness, fatigability or loss of coordination on range of motion testing. The examiner stated that the veteran's lack of full flexion appeared to be volitional and due to poor effort. The examiner assessed right knee chondromalacia of patella. 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. 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). 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). 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. It should be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Turning to Diagnostic Codes applicable to the knee, under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability and a 20 percent rating is applied for moderate recurrent subluxation or lateral instability. Under Diagnostic Code 5256, a minimum 30 percent rating is warranted when there is ankylosis of the knee with favorable angle in full extension or in slight flexion between 0 and 10 degrees. Under Diagnostic Code 5258, a 20 percent disability rating is available for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. There is no rating in excess of 10 percent available under Diagnostic Code 5259 for cartilage removal. Diagnostic Code 5260 provides that a rating of 10 percent is warranted for flexion limited to 45 degrees, and flexion of the leg limited to 30 degrees is rated 20 percent disabling. A 10 percent disability rating is allowed under Diagnostic Code 5261 when extension of the leg is limited to at least 10 degrees; and extension of the leg limited to 15 degrees is rated 20 percent disabling. See 38 C.F.R. § 4.71(a), Diagnostic Codes 5256 through 5261. Normal extension and flexion of the knee is from 0 degrees to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Board also notes VA General Counsel Precedent Opinion, 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. Additionally, separate ratings may be assigned for knee disability under Diagnostic Codes 5257 and 5003 where there is X-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. In rating a service-connected knee disability, all applicable diagnostic codes must be considered to include Diagnostic Codes 5003, 5256, 5257, 5258, 5259, 5260, and 5261. In Butts v. Brown, 5 Vet. App. 532 (1993), the Court held that the selection of the proper diagnostic code is not a question of law subject to the de novo standard of review. Accordingly, the Court held in Butts that as VA and the Board possess specialized expertise in determining the application of a particular diagnostic code to a particular condition, their determination is due greater deference. Indeed, the Court has also held that, although the reason for the change must be explained, the VA and the Board may change the diagnostic codes under which a disability or disabilities are evaluated. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In turning to the Diagnostic Codes applicable to the knees which provide for disability ratings in excess of 10 percent, with regard to Diagnostic Code 5257, there is no persuasive evidence of moderate recurrent subluxation or lateral instability to warrant a rating in excess of 10 percent for the knee. In November 2003, July 2006 and in March 2007 his medial and lateral collateral ligaments, as well as anterior and posterior cruciate ligaments, were stable and intact. A 30 percent disability rating under Diagnostic Code 5256 would not apply in this case because the pertinent medical evidence of record has not shown that there is ankylosis of the right knee. Additionally, Diagnostic Code 5259 does not provide for a disability rating in excess of 10 percent; therefore, it is not applicable to this analysis. With regard to Diagnostic Code 5258, even though the veteran has complained of constant right knee pain, there is no medical evidence of frequent episodes of joint effusion or locking. Although in March 2007 the veteran reported two episodes of effusion over the previous 6 months, the VA examiner found no effusion upon physical examination. This finding is consistent with the veteran's prior VA examination reports as well. Therefore, the Board is unable to find that a 20 percent rating is warranted under this Code. The Board also notes that in order to assign a 20 percent rating under Codes 5260 or 5261, flexion would have to be limited to 30 degrees or extension would have to be limited to 15 degrees. The record clearly shows that the veteran does not suffer limitation of flexion or of extension to such a degree. In November 2003 range of motion of his right knee was 0 to 65 degrees. In July 2006 range of motion was from 0 to 125 degrees, and in 2007 range of motion was from 0 degrees to 110-120 degrees. Therefore, the Board is unable to find that a 20 percent rating is warranted. As previously noted, when evaluating musculoskeletal disabilities on the basis of limitation of motion, functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is to be considered in the determination of the extent of limitation of motion. 38 C.F.R. § 4.40, 4.45, 4.59 (2003); DeLuca, 8 Vet. App. at 204-07. The Board notes that the veteran has reported pain in the right knee over the years since his initial injury. The Board finds that the present 10 percent rating takes into consideration the veteran's complaints of knee pain, thus, the Board finds that 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for a higher rating. See DeLuca, 8 Vet. App. at 204-07. There is also no x-ray evidence of arthritis to provide a basis for consideration for separate ratings under Code 5257 and Code 5003. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. The veteran clearly suffers from right knee impairment. However, the Board is bound by regulations which set forth the criteria for various ratings. Throughout this entire rating period on appeal, the preponderance of the evidence in this case is against a finding that the criteria for a rating in excess of the current 10 percent have been met under any applicable Diagnostic Code. Hart, supra. The veteran may always advance a claim for an increased rating should the severity of his right knee disability increase in the future. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that the service- connected disorder has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A disability rating in excess of 10 percent for right knee sprain is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs