Citation Nr: 0815102 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-32 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an increased rating for service-connected total right knee replacement, rated 30 percent disabling from March 1, 2006, to January 15, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran served on the United States Marine Corps Reserve from January 1976 to March 1977, and on active duty from March 1977 to May 1998. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO). A hearing before a decision review officer at the RO was conducted in August 2006. A hearing at the RO before the undersigned was conducted in February 2008. The veteran stated that he was only seeking an increased rating for his right knee disability from March 1, 2006, to January 15, 2007, as set forth on the cover page of this decision. Later that month, he submitted additional evidence, and waived RO consideration of that evidence. This case was advanced on the docket, pursuant to 38 C.F.R. § 20.900(c). FINDINGS OF FACT 1. From March 1, 2006, to January 15, 2007, the preponderance of the evidence demonstrates chronic residuals of severe painful motion and weakness of the right knee, subsequent to January 2005 right knee surgery. 2. From March 1, 2006, to January 15, 2007, the evidence does not demonstrate that the veteran's right knee disability is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSIONS OF LAW 1. The schedular criteria for a 60 percent disability rating for the service-connected right knee disability have been met from March 1, 2006, to January 15, 2007. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2007). 2. The criteria are not met for a higher rating for the right knee disability on an extraschedular basis from March 1, 2006, to January 15, 2007. U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.321(b)(1) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). This was accomplished as the veteran received notice relating to assignment of an increased rating from March 1, 2006, to January 15, 2007, in June 2005. The veteran was also provided notice after the January 2006 rating decision, in April 2006. The notice did not adequately discuss the criteria for an increased rating, thus VA's duty to notify him of the information and evidence necessary to substantiate the claim has not been satisfied. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Requiring an appellant to demonstrate prejudice because of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Id. Instead, all notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. Id. In this case, VA can show that any defect was cured by actual knowledge on the part of the claimant. Id. The veteran submitted the opinion of his treating orthopedic surgeon which noted that he had chronic residuals of the first total knee replacement consisting of severe painful motion and weakness of his right knee from March 1, 2006, to January 15, 2007. The veteran's disability is rated under Diagnostic Code 5055, and the symptomatology described by the surgeon duplicates the requirements for the highest schedular rating under that Diagnostic Code. The veteran was provided a statement of the case, and any notice errors did not affect the essential fairness of the adjudication as VA has obtained all relevant evidence, and as the appellant has demonstrated actual knowledge of what was necessary to substantiate the claim. Id., Vazquez-Flores, supra. As both actual knowledge of the veteran's procedural rights, and the evidence necessary to substantiate the claims, have been demonstrated and he, and those acting on his behalf, have had a meaningful opportunity to participate in the development of his claims, no prejudice to the veteran will result from proceeding with adjudication without additional notice or process. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. Any defect with regard to the timing or content of the notice to the appellant is harmless because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the veteran of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant evidence. VA has obtained several examinations. Thus, VA has satisfied both the notice and duty to assist provisions of the law. II. Analysis Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Separate, or staged, ratings can be assigned for separate periods of time based on the facts found. 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 the higher rating. 38 C.F.R. § 4.7. The veteran's right knee disability is evaluated as 30 percent disabling under DC 5055 from March 1, 2006, to January 15, 2007. The veteran explained at his hearing in February 2008 that he is only disagreeing with the assignment of the 30 percent rating given after the termination of his temporary total rating due to right total knee replacement surgery on January 10, 2005. Private medical records from that period of time note complaints of pain, and that chronic pain and right knee effusion was diagnosed. He submitted the statement from his orthopedic surgeon dated in February 2008 noting that he had chronic residuals of the first total knee replacement consisting of severe painful motion and weakness of his right knee from March 1, 2006, to January 15, 2007. He underwent second and third surgeries of the knee on January 15, 2007, and April 17, 2007. He stated that he would be reevaluated in March 2008 for assignment of another schedular rating after the termination of the temporary total rating assigned on January 15, 2007, and noted that that issue was not before the Board at this time. Under Diagnostic Code 5055, following the prosthetic replacement of a knee joint, a 100 percent rating will be assigned for one year. Thereafter, a 60 percent rating is warranted if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5055. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension) or 5262 (impairment of the tibia and fibula). Diagnostic Code 5055 provides that the minimum rating for a knee replacement is 30 percent. Id. The criteria of Diagnostic Code 5256 are as follows: 30 percent for favorable angle in full extension, or slight flexion between 0 degrees and 10 degrees; 40 percent for ankylosis in flexion between 10 degrees and 20 degrees; 50 percent for ankylosis in flexion between 20 degrees and 45 degrees, and 60 percent for extremely unfavorable ankylosis, or ankylosis in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Under Diagnostic Code 5261, limitation of extension of the leg provides a 0 percent rating if extension is limited to 5 degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71a, Plate II. See 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5262 provides that a 40 percent rating for nonunion of the tibia and fibula, with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The medical evidence case shows that, from March 1, 2006, to January 15, 2007, the veteran had chronic painful limitation of motion of the right knee and chronic right knee pain. A 60 percent rating for right total knee replacement residuals is warranted under Diagnostic Code 5055. Consideration must be given to whether any other applicable diagnostic codes would afford the veteran a rating in excess of 60 percent, but there are no such codes. Documented range of motion findings do not warrant the assignment of separate ratings for limitation of flexion and extension of the knee, because doing so would not avail the veteran of a combined rating in excess of 60 percent. 38 C.F.R. § 4.25; VAOPGCPREC 9-04. As the veteran's right knee disability is now assigned the maximum schedular rating, there remains for consideration whether a higher (than 60 percent) rating might be warranted on an extraschedular basis. In that regard, the veteran testified at his August 2006 decision review officer hearing that he worked 12-hour shifts, however, his knee pain has increased since the January 2005 surgery. While the veteran's right knee disability has increased in severity as demonstrated by the 60 percent schedular evaluation, it is not shown to produce marked interference with employment from March 1, 2006, to January 15, 2007. Frequent periods of hospitalization have not been shown before January 15, 2007. The veteran underwent additional right knee surgeries on January 15, 2007, and April 17, 2007; and his right knee disability may very well require an extraschedular rating or total disability rating due to individual unemployability subsequent to expiration of the temporary total rating assigned. However, that issue is not before the Board, and the veteran, at his February 2008 hearing, stated that he understood that only the rating from March 1, 2006, to January 15, 2007, was at issue. Consequently, referral of the case for consideration of an extraschedular rating in excess of 60 percent for the period from March 1, 2006, to January 15, 2007, is not warranted. See 38 C.F.R. § 3.321. ORDER An evaluation of 60 percent for a right knee disability from March 1, 2006, to January 15, 2007, is granted, subject to the applicable laws and regulations concerning the payment of monetary benefits. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs