Citation Nr: 1004530 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 09-07 291 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to a rating in excess of 30 percent for total right knee replacement, from February 1, 2008. 2. Entitlement to a rating in excess of 10 percent for internal derangement of the left knee. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to September 1979. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2008 rating decision in which the RO granted a temporary total rating for total right knee replacement from December 7, 2006 to January 31, 2008, assigned a 30 percent rating for the right knee thereafter (the right knee was previously assigned two separate ratings, one for chondromalacia patella and one for degenerative joint disease), and denied a rating in excess of 10 percent for internal derangement of the left knee. In June 2008, the Veteran filed a notice of disagreement (NOD) with the assigned disability ratings. A statement of the case (SOC) was issued in January 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2009. In October 2009, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Later that month, the Veteran submitted additional evidence to the RO, which was subsequently forwarded to the Board, with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2009). The Board's decision addressing the claim for a higher rating for internal derangement of the left knee is set forth below. The claim for a higher rating for total right knee replacement, from February 1, 2008, is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on her part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Pertinent to the current claim for increase, the Veteran's service-connected internal derangement of the left knee has been manifested by pain, mild instability, and flexion limited to no less than 120 degrees. The Veteran also has osteoarthritis of the left knee. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for instability associated with internal derangement of the left knee are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code 5299-5257 (2009). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent, but no higher, rating for osteoarthritis of the left knee with limitation of motion have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), 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(s); (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(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. 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). 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). 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 a September 2007 post-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for a higher rating, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; this letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. An August 2008 post-rating letter included the pertinent rating criteria for evaluating knee disabilities. After issuance of the August 2008 letter, and opportunity for the Veteran to respond, the January 2009 SOC reflects readjudication of the claim (the Board notes that the January 2009 SOC also included the pertinent rating criteria). 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 supplemental SOC (SSOC), is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the reports of a January 2008 VA examination. Also of record and considered in connection with the appeal is the transcript of the Veteran's October 2009 Board hearing, along with various written statements provided by the Veteran, and by her representative and friend, on her behalf. The Board also finds that no additional RO action to further develop the record on the claim for a higher rating for internal derangement of the left knee is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself 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 this 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 herein decided, 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. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on 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 ratings shall be applied, the higher rating 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. 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 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, 509- 10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In this case, the RO assigned a 10 percent rating for the Veteran's internal derangement of the left knee pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5299-5257, indicating that she has an unlisted disability rated on the basis of instability. Under Diagnostic Code 5257, other impairment of the knee, such as recurrent subluxation or lateral instability, is rated as 10 percent disabling when slight, 20 percent disabling when moderate, and 30 percent disabling when severe. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. In January 2008, a VA examiner noted mild instability of the medial collateral ligament with valgus stress. The lateral collateral and anterior and posterior cruciate ligaments were relatively stable, normal. During her October 2009 hearing, the Veteran testified that her left knee locks up at least once a week. She also stated that the knee feels unstable, swells, is painful, has limited motion, and that she has fallen several times. As no more than mild instability is shown by the evidence of record, a rating in excess of 10 percent for internal derangement of the left knee, based on instability, is not warranted. The Board has considered the application of alternative diagnostic codes for rating the Veteran's instability. In this regard, a higher disability rating of 20 percent could be awarded with evidence of dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Although swelling, pain, and locking are reported by the Veteran, dislocated semilunar cartilage is not shown. However, the record does present a basis for a separate 10 percent rating for arthritis, consistent with VAOPGCPREC 23- 97, 62 Fed. Reg. 63,604 (1997), and VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998) (holding that arthritis and instability of the knee may be rated separately). Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Rating Schedule provides for disability ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for disability ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. For rating purposes, normal range of motion in a knee joint is from 0 degrees (extension) to 140 degrees (flexion). 38 C.F.R. § 4.71, Plate II. The Board also notes that, 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 or 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, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). On VA examination in January 2008, the Veteran's left knee was limited to 120 degrees of flexion. There was no pain or loss of extension. The examiner assessed left knee osteoarthritis and commented that X-ray reports were consistent with the assessment. As arthritis and limitation of left knee flexion are shown, a separate 10 percent rating is warranted. Notably, after repetitive flexion and extension, testing for pain, weakness, fatigability, and incoordination showed no change; with the same range of motion. As flexion is only limited to 120 degrees, a rating in excess of 10 percent, based on limitation of flexion, is not warranted. Limitation of left leg extension is not shown in this case, thus a separate rating based on limitation of extension is not warranted. The Board has also considered the applicability of other diagnostic codes for rating this disability, but finds that no other diagnostic code provides a basis for higher rating. In this regard, ankylosis of the left knee and tibia and fibula impairment are not shown. The disability also has not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule. The VA examiner in January 2008 noted numerous surgical scars on the Veteran's left knee. The Veteran has not contended, and the evidence does not suggest, that any of these scars are large, painful, unstable, or otherwise cause any limitation of function. Thus, a separate rating for these scars is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805 (2008). The Board notes that it has considered the letter written on the Veteran's behalf, by her friend, in October 2009; however, this letter appears to address problems with the right knee, as opposed to the left knee. In reaching the above determinations, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). While the Board has resolved reasonable doubt in the Veteran's favor in assigning a separate 10 percent rating for osteoarthritis with limitation of motion of the left knee, the Board also finds that the preponderance of the evidence is against assignment of a rating greater than 10 percent for osteoarthritis with limitation of motion of the left knee , as well as against assignment of a rating in excess of 10 percent for instability associated with internal derangement of the left knee.. ORDER A rating in excess of 10 percent for instability as a result of internal derangement of the left knee is denied. A separate 10 percent rating for osteoarthritis of the left knee with limitation of motion is granted, subject to the legal authority governing the payment of compensation benefits. REMAND The Board's review of the claims file reveals that further RO action on the claim for a higher rating for total right knee replacement, from February 1, 2008, is warranted. In this case, a new examination is needed to address the current severity of the Veteran's right knee disability, and to provide findings responsive to the rating criteria relevant to this claim. The Veteran's right knee disability is currently evaluated under Diagnostic Code 5055. See 38 C.F.R. § 4.71a. Pursuant to that diagnostic code, a 100 percent rating is warranted for 1 year following implantation of a knee joint prosthesis. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain or limitation of motion can be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum rating following prosthetic replacement of the knee joint is 30 percent. The Veteran's last VA examination was in January 2008; performed during the time when her right knee was still temporarily rated as totally disabling. Since that examination, the Veteran's private physician, Dr. Little, has opined that the Veteran's right knee disability represents an anticipated scheduled loss of 55 percent, based on the guidelines of Workers Compensation. While Workers Compensation guidelines are not controlling in VA cases, Dr. Little's opinion does indicate a worsening right knee disability. Moreover, in a March 2009 treatment record (which has not yet been considered by the RO), Dr. Little noted that the Veteran's pain had escalated. Importantly, chronic residuals with severe painful motion could warrant a higher rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. Doctor Little also noted that the Veteran had injured her right foot and knee in February 2009. He was suspicious that the Veteran had a nondisplaced fracture of the distal femur and referred the Veteran for a bone scan, after which she was to return to see him. To ensure that the record reflects the current severity of the Veteran's right knee disability, and in light of the medical evidence indicating an increase in symptomatology, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate the service-connected right knee disability. During the October 2009 hearing, the Veteran indicated her willingness to report to a VA examination, if needed. Accordingly, the RO should arrange for the Veteran to undergo a VA orthopedic examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, shall result in a denial of the claim for increase. See 38 C.F.R. § 3.655(b) (2009). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, the RO should seek to obtain any outstanding private treatment records relevant to the Veteran's right knee disability. In this regard, in March 2009, Dr. Little referred the Veteran for a bone scan and asked that she follow up with him after that bone scan. The Veteran should specifically be asked to provide authorization to obtain outstanding records from Dr. Little. Further, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the appellant an opportunity to present information and/or evidence pertinent to the claim for a higher rating for the right knee disability. The RO's notice letter to the appellant should explain that she has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2009) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). After providing the required notice, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. The RO's readjudication of the claim for a higher rating for the right knee disability, from February 1, 2008, should include consideration of whether a higher rating could be warranted by assigning (a) rating(s) for arthritis, instability, limited flexion and/or limited extension. See VAOPGCPREC 9-98 (1998); VAOPGCPREC 9-2004 (2004). The RO's adjudication of the claim should also include consideration of whether "staged" rating of the Veteran's right knee disability pursuant to Hart, 21 Vet. App. at 509-10 is appropriate. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim for a higher rating for the right knee disability that is not currently of record. The RO should specifically request that the Veteran provide information and authorization necessary to request outstanding treatment records from Dr. Little. The RO should also clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo a VA orthopedic examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and a report of the examination should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies (to include X-rays) should be accomplished (with all findings made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should conduct range of motion testing of the right knee, expressed in degrees. The physician should indicate whether, on examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the physician should indicate the point at which pain begins. In addition, after having considered the Veteran's medical history and assertions, the physician should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the physician should express any such additional functional loss in terms of additional degrees of limited motion. If painful motion or weakness of the right lower extremity is found, the physician must assess whether such painful motion and/or weakness is slight, moderate, or severe. The physician should specifically indicate whether the Veteran has degenerative joint disease/ osteoarthritis in the right knee, substantiated by X-ray. The physician should also indicate whether there is any lateral instability and/or recurrent subluxation in the knee. If instability is present, the physician should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate or severe. The physician should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for a higher rating for total right knee replacement, from February 1, 2008. If the Veteran fails, without good cause, to report to the scheduled examination, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate the claim for increase in light of all pertinent evidence and legal authority (to include consideration of whether "staged" rating of the Veteran's disability, pursuant to Hart (cited to above) is appropriate, as well as whether (pursuant to VA General Counsel Opinions cited to above) separate ratings are assignable for arthritis and instability, and/or for limited flexion and limited extension. 7. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and her representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs