Citation Nr: 0815098 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-20 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for a left knee disability, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD Tahirih S. Samadani INTRODUCTION The veteran served on active duty from July 1943 to July 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. A motion to advance this case on the docket due to the appellant's advanced age was granted by the Board in May 2008. See 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDING OF FACT The veteran's service-connected left knee disability is manifested by limitation of motion; extension is not limited to more than 5 degrees and flexion is not limited to less than 60 degrees; neither locking, instability nor subluxation of the knee is present. CONCLUSION OF LAW The veteran's left knee disability does not warrant more than the currently assigned evaluation of 20 percent. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court has recently provided guidance with respect to the notice that is necessary in increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Adequate VCAA notice in an increased rating claim must inform the claimant that he 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; and that, if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes. If the claimant is rated under a Diagnostic Code that 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, the notice letter must provide at least general notice of that requirement. The notice letter 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 mailed to the veteran in November 2005 and March 2006 informed him that he 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 veteran's employment and daily life. They also informed him to submit any pertinent evidence in his possession and provided appropriate notice with respect to the effective-date element of the claim. They also included information on how VA determines the disability rating by use of the rating schedule, and provided examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain), to include treatment records, Social Security determinations, statements from employers concerning the impact of the disability on the veteran's employment, and statements from persons concerning their observations of how the disability has affected the veteran. They also informed the veteran of the assistance that VA would provide to obtain evidence on his behalf. This is not a case in which a noticeable worsening or increase in severity of the disability would not establish the veteran's entitlement to an increased rating. In any event, the veteran was provided the specific criteria for rating the disability in the Statement of the Case. Although the veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that an increased rating is not warranted. Consequently, no effective date for an increased rating will be assigned, so the failure to provide earlier notice with respect to that element of the claim was no more than harmless error. Moreover, following the provision of the required notice and the completion of all indicated development, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision on this claim would have been different had complete VCAA notice been provided at an earlier time. The record reflects that the veteran's service medical records have been obtained, as have post-service treatment records. The veteran has also been afforded an appropriate VA examination. Neither the veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate his claim. The Board is also unaware of any such evidence. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5003. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. Limitation of flexion of a leg warrants a noncompensable evaluation if flexion is limited to 60 degrees, a 10 percent evaluation if flexion is limited to 45 degrees, a 20 percent evaluation if flexion is limited to 30 degrees or a 30 percent evaluation if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a noncompensable evaluation if extension is limited to 5 degrees, a 10 percent evaluation if extension is limited to 10 degrees, or a 20 percent evaluation if extension is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 38 C.F.R. § 4.71a, Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, or a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Removal of semilunar cartilage warrants a 10 percent evaluation if it is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA's General Counsel has held that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and a veteran also has limitation of knee motion, separate evaluations may be assigned for arthritis with limitation of motion and for instability. VAOPGCPREC 23-97 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998). The VA General Counsel also 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. VAOPGCPREC 9-2004 (September 17, 2004). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2007) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran claims that his left knee disability has increased in severity. He alleges that he has constant and severe pain with daily intake of pain medication, which does not seem to help. He also reports hardly being able to ambulate even with a walking cane. A review of the medical evidence of records shows that the veteran has displayed full to nearly full extension of the left knee on all range of motion tests. On no occasion, has the veteran been found to have limitation of extension to more than 5 degrees. At a December 2005 VA examination, extension was to zero degrees, with pain experienced only at the end of the motion. Therefore, it is clear that the left knee disability does not warrant a compensable rating under Diagnostic Code 5261. Likewise, the medical evidence does not show that the veteran has limitation of flexion to less than the 30 degrees contemplated by a 20 percent evaluation. In a February 2005 VA outpatient treatment record, flexion was to 60 degrees. In an August 2005 VA treatment record, rotation of motion was to 90 degrees. Most recently, in the December 2005 VA examination, flexion was to 60 degrees with pain and 40 degrees without pain. After repetitive use, range of motion decreased to 50 degrees. Since the assigned rating contemplates limitation of flexion to 30 degrees, it is clear that a higher rating is not warranted under Diagnostic Code 5260. Moreover, the objective evidence reflects that the veteran does not have symptoms due to removal of semilunar cartilage. The veteran denies stiffness, locking or flare-ups. The veteran reported during the December 2005 examination that he wears a knee brace on occasion to help increase his stability. Although the veteran reported constant instability, the examiner opined that the veteran's left knee was stable on his examination and there was only mild crepitus present. In addition, there is no evidence of record showing subluxation of the left knee. As for the veteran's contentions of pain in his left knee, the Board finds that pain is already contemplated and considered under the currently assigned rating. Therefore, a higher rating for pain is not warranted. The Board has considered whether there is any other schedular basis for assigning a higher evaluation for the left knee disability but has found none. Moreover, the Board has considered the benefit-of-the-doubt doctrine but finds that there is no approximate balance of positive and negative evidence such as to warrant its application. The medical evidence preponderates against the veteran's claim of entitlement to a rating in excess of 20 percent for left knee disability. In addition, the Board has considered whether this case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. The record reflects that the veteran has not required frequent hospitalizations for the service-connected disability and that the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by a 20 percent evaluation. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. ORDER Entitlement to an increased rating for a left knee disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs