Citation Nr: 1037286 Decision Date: 09/30/10 Archive Date: 10/05/10 DOCKET NO. 04-34 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased evaluation for postoperative residuals of synovitis of the right knee, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for residuals of fracture of the left ankle, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Mark C. Kujawski, Attorney ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active service from September 1966 until August 1967 with 17 days prior service per the DD 214. These matters initially came before the Board of Veterans' Appeals (Board) from a July 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in New York, New York. This case was previously before the Board in June 2006, at which time the Board denied the Veteran's claims. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a March 31, 2008 Memorandum Decision, with Judgment entered April 23, 2008, the Court vacated the Board's June 2006 decision and remanded the case to the Board for readjudication in accordance with the directives set forth in the Court's decision. In June 2009, the Board remanded the case for further evidentiary development. The requested development has been satisfactorily completed and the case has been returned to the Board for appellate review. In the prior remand, the Board had noted that the record did not reflect that the Veteran filed a VA Form 21-22, Appointment of Veterans Service Organization or Claimant's Representative, as required under 38 C.F.R. § 20.602, and, thus, was unrepresented. For purposes of appealing his claim to the Court, the Veteran appointed, Mark C. Kujawski, Esq. to represent him before the Court. The Board observes that in March 2009, well after representing the Veteran before the Court, such attorney submitted evidence to the Board on the Veteran's behalf. However, there was no evidence that the Veteran submitted a VA Form 21-22, Appointment of Veterans Service Organization or Claimant's Representative or a VA Form 21-22a, Appointment of Attorney or Agent as Claimant's Representative as required under 38 C.F.R. § 20.603, in order for the Board to validly recognize such attorney as a representative for the Veteran at that time. However, in July 2009, the Veteran did submit VA Form 21-22a in favor of Mr. Kujawski. Hence, his representative has been properly appointed. FINDINGS OF FACT 1. Throughout the rating period on appeal, the postoperative residuals of synovitis of the right knee were manifested by complaints of pain and instability, productive of noncompensable limitation of motion. 2. Throughout the entirety of the rating period on appeal, the evidence reveals left ankle pain and swelling productive of no more than moderate limitation of motion. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 10 percent for postoperative residuals of synovitis of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.459, 4.71a, Diagnostic Code 5257 (2009). 2. The criteria for entitlement to an evaluation in excess of 10 percent for residuals of fracture of the left ankle have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.459, 4.71a, Diagnostic Code 5271 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act 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) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Duty to Notify The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit other evidence that may be relevant to the claim. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such 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; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In May 2003 and August 2009 VCAA notice letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate the claims for an increased rating, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claims. The August 2009 letter also advised the Veteran of how disability ratings and effective dates are assigned. The Board also observes that this case was remanded by the Court in March 2008, in part, for compliance with the Court's holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which focuses on VCAA notice requirements in an increased rating case. However, despite the August 2009 notice letter sent to the Veteran complying with the case, the Board points out that the case was recently overturned in part by the Federal Circuit. See Vazquez-Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sep. 4, 2009). Hence, it need not be further discussed in this decision. The Board finds that any deficiency with respect to the timing of the notice provided is harmless. The notice discussed above fully complied with the requirements of 38 U.S.C.A. § 5103, 5103A and 38 C.F.R. § 3.159, and the Veteran was fully informed of the evidence that was needed to support his claim. Moreover, following the notice, the RO readjudicated the appeal in a July 2010 Supplemental Statement of the Case. Thus, the Board concludes that there is no prejudice to the Veteran due to any defect in the timing of the notice. See 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 a statement of the case or a supplemental statement of the case is sufficient to cure a timing defect). Accordingly, the Board finds that the duty to notify provisions have been satisfactorily met, and the Veteran has not pointed out any specific deficiency to be corrected. Duty to Assist The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, post service VA and private treatment records, the relevant VA examination reports, and the Veteran's statements. Also obtained are records from the Social Security Administration and records pertaining to the Veteran's workers' compensation claim. The VA examination reports are adequate, as they were predicated on the pertinent evidence of record, and the Veteran's statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran's claims file was not available for review by the VA examiner at the time of the May 2003 VA examination. However, the reported medical history considered by the examiner was consistent with that contained in the claims folder. Hence, consideration of the current disability status was made in view of the Veteran's medical history, as required by 38 C.F.R. §§ 4.1 and 4.2 (2009). The claims file was reviewed and an addendum prepared by the VA examiner who conducted the December 2009 VA examination. Consequently, the Board finds that VA's duty to assist has also been met in this case. As discussed, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. Thus, the record demonstrates that the Veteran had knowledge of what was needed to substantiate the claims, which cured any defect in the notice provided. Any defect in the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. As such, there is no indication that there is any prejudice to the Veteran in considering the matters on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2009). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2009). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, 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. The regulations require that where there is a question as to which of two evaluations is to 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 (2009). Degenerative or traumatic arthritis, established by X-ray findings, is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints 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 affected by limitation of motion. 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 (degenerative arthritis) and Diagnostic Code 5010 (traumatic arthritis). The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered in assigning an evaluation for degenerative or traumatic arthritis under Diagnostic Code 5003 or 5010. Rating personnel must consider functional loss and clearly explain the impact of pain on the disability. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The provisions of 38 C.F.R. § 4.40 concern lack of normal endurance, functional loss due to pain, and pain on movement and during flare-ups; the provisions of 38 C.F.R. § 4.45 concern weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concern the effects of the disability on the veteran's ordinary activity. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). VA General Counsel has held that knee arthritis and instability may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Further, VA General Counsel has 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. VAOGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). Normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. Normal range of motion for the ankle is plantar flexion to 45 degrees and dorsiflexion to 20 degrees. 38 C.F.R. § 4.71, Plate II (2009). Right Knee The veteran is currently assigned a 10 percent evaluation for postoperative residuals of synovitis of the right knee, currently evaluated pursuant to Diagnostic Code 5257 which contemplates knee impairment manifested by recurrent subluxation or lateral instability. Under that Code section a 10 percent disability rating is warranted for slight impairment. To achieve the next- higher 20 percent disability rating, the evidence must demonstrate moderate impairment. The Board has reviewed the competent evidence during the rating period in question and finds that such records reflect no more than slight knee impairment as contemplated by Diagnostic Code 5257. Upon VA examination in May 2003, the examiner noted that the stability of the right knee was within normal limits. Private examination in March 2003 by A.S.H., M.D., revealed that Lachman's, pivot shift, and Apley's tests were negative. The varus and valgus stress tests revealed no laxity of the medial collateral ligaments. Range of motion of the knee was reported to be full extension and flexion to 98 degrees with subjective complaints of pain. There was patellofemoral crepitus and tenderness along the medial and lateral joint lines. Dr. A.S.H. also stated there was no subluxation of the patella and no dislocation and that the Veteran walked with a marked antalgic limp although he was able to get on the examining table without any assistance or difficulties. In reaching the above conclusion, the Board acknowledges that pain, stiffness, swelling, and giving away are noted upon VA examination in May 2003. The VA examiner also noted that the Veteran used an elastic brace on his right knee at times. Further, upon private examination in March 2003, the Veteran's anterior drawer sign was +1 and the McMurray test was positive medially. However, these complaints and findings have been contemplated in the current 10 percent rating assignment. Similar findings were made at the more recent VA examination that was conducted in December 2009. Stability of the right knee was within normal limits, and range of motion was from 0 to 100 degrees with pain on motion. Additional functional limitation based on flare-ups could not be determined without resort to speculation. The Social Security Administration disability records as well as the records pertaining to the Veteran's workers' compensation claim involve treatment for herniated discs and cardiac disease. Hence, they are not relevant to the rating of the Veteran's right knee disability. As such, based on the overall evidence as described above, the Veteran's disability picture is not more closely approximated by the next-higher 20 percent evaluation under Diagnostic Code 5257. Rather, the 10 percent rating is appropriate. In so deciding, the Board notes that an increase on the basis of limitation of motion due to factors such as pain, weakness, incoordination and fatigability is not for application in this analysis of Diagnostic Code 5257, because such Code section is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Board has also contemplated whether any other Diagnostic Code might allow for an increased rating. However, as the competent evidence does not establish ankylosis or functional impairment comparable therewith, Diagnostic Code 5256 is inapplicable. Additionally, as the evidence fails to demonstrate tibia/fibula impairment, Diagnostic Code 5262 is also not for application. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, a 10 percent rating is warranted where flexion of the leg is limited to 45 degrees, and a 20 percent rating is warranted where flexion is limited to 30 degrees. With regard to the question of whether the Veteran is entitled to a separate rating in addition to the 10 percent evaluation currently assigned, for limitation of motion due to arthritis, the Board observes that the examination reports discussed above all included a diagnosis of osteoarthritis of the right knee. Limitation of leg motion is addressed under Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, a noncompensable evaluation applies for limitation of leg flexion to 60 degrees. Under Diagnostic Code 5261, a noncompensable evaluation applies for limitation of leg extension to 5 degrees. However, the medical evidence of record fails to reveal flexion or extension limited to even noncompensable levels. Indeed, the VA examinations in May 2003 fail to demonstrate right knee flexion limited to less than 110 degrees or right knee extension less than full. Similarly, Dr. A.S.H.'s examination in March 2003 failed to demonstrate right knee flexion limited to less than 98 degrees or right knee extension limited to less than full and upon VA examination in December 2009, range of motion of the right knee was from 0 to 100 degrees. The Board acknowledges the Veteran's complaints of right knee pain as well as the reports of pain on motion. For example, at the private examination, the Veteran remarked that he had pain in his right knee with difficulty ambulating because of pain. Dr. A.S.H. stated that the Veteran ambulated with a marked antalgic limp. Upon VA examination in May 2003, the Veteran reported pain, stiffness, swelling, and giving way in his right knee precipitated by ambulation. At times, he used an elastic brace to support his knee. The VA examiner also noted the veteran takes 375 mg of Naprosyn twice a day with some relief and suffers from lack of endurance. Additionally, in his September 2004 substantive appeal, the veteran indicated that his right knee causes him chronic pain and swelling. Also, he stated that his right knee is severely unstable both medially and laterally. The veteran reported a deficit in his range of motion. Nevertheless, the Board finds that the objective clinical evidence as a whole fails to demonstrate additional functional limitation such as to render the Veteran's disability picture analogous to at least noncompensable levels under Diagnostic Code 5260 or 5261. Therefore, the Board finds that a separate rating for arthritis is not assignable through application of VAOPGCPREC 23-97 and VAOPGCPREC 9-98. The Veteran's right knee disability has been reported to involve a scar. Therefore, the Board may consider whether the veteran is entitled to a separate rating for a scar. Disabilities of the skin are addressed under 38 C.F.R. § 4.118. Evidence of a superficial and painful scar is required in order to achieve a rating under Diagnostic Code 7804. Here the evidence does not establish that such criteria have been met. Upon VA examination in May 2003, a 2-inch scar medially and a 5-inch post-high tibial osteotomy scar laterally were noted on the right knee. The VA examiner described the scars as healed. Furthermore, Dr. A.S.H. also noted that the Veteran has a well-healed surgical scar on his right knee. Similar findings were made upon VA examination in December 2009. Consequently, the Board finds that the record does not reflect findings relative to any symptomatic surgical scar, and in fact, the Veteran has not raised any complaints regarding the scar. In view of the foregoing, the Board finds that a separate compensable evaluation for a right knee scar is also not appropriate here. Esteban v. Brown, 6 Vet. App. 259 (1994). In conclusion, the currently assigned 10 percent evaluation for the Veteran's right knee disability is appropriate and there is no basis for a higher rating. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Again, as noted above, the Social Security disability records note that the Veteran's working limitations stem from his herniated discs and his heart disease. In a May 2006 examination, the physician noted that the Veteran complained of pain in his right knee and left ankle which limited his ability to walk a long distance or climb stairs. However, the examiner noted that the Veteran's complaints were credible, but not to the extent that he alleged because he was able to perform his activities of daily living, he was able to drive, and he was able to go out on his own. Hence, the Board concludes that the assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 (2009) is not warranted at this time. Left Ankle The Veteran's residuals of fracture of his left ankle are currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5271, which pertains to limitation of motion of the ankle. Under that Diagnostic Code, a 10 percent disability rating is assigned where the evidence demonstrates moderate limitation of motion. A 20 percent rating is for application where there is marked limitation of motion. Here, the evidence of record shows no more than moderate limitation of motion. Upon evaluation in by Dr. A.S.H. in March 2003, the Veteran could dorsiflex the left ankle to 10 degrees and he exhibited plantar flexion to 20 degrees. There was decreased inversion and eversion. At a May 2003 VA examination, the Veteran exhibited dorsiflexion from 0 to 15 degrees and plantar flexion from 0 to 35 degrees. At the more recent VA examination in December 2009, the Veteran exhibited virtually full range of painless motion with dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. Thus, while the above evidence does reveal some limitation of left ankle motion at least during part of the rating period, such limitation is found to be moderate rather than marked, leading to the conclusion that the 10 percent rating in effect is appropriate. In determining that the objective findings described above do not constitute marked limitation of motion, the Board has relied on 38 C.F.R. § 4.71a, Plate II, noted above, which demonstrates that 20 degrees is a normal finding for ankle dorsiflexion and that 45 degrees is a normal finding for plantar flexion. While the objective findings do reflect some limitation of motion, the Veteran retained at least 50 percent of normal dorsiflexion and plantar flexion on the March 2003 and May 2003 examinations. Such limitations have been appropriately contemplated by the currently assigned 10 percent evaluation for moderate ankle disability. In reaching this determination, the Board has also considered additional functional impairment due to factors such as pain and weakness, as discussed below. In this regard, the private examination report from Dr. A.S.H. dated in March 2003 reflected complaints of left ankle pain with difficulty ambulating. Dr. A.S.H. noted that all of the Veteran's movements during the range of motion examination were painful. In the May 2003 VA examination report, it was noted that the Veteran experienced pain, stiffness, swelling, and giving way in his left ankle. Specifically, the VA examiner noted the Veteran's lack of endurance and mild edema at the left medial malleolus. However, while the evidence of record does establish complaints of pain associated with the Veteran's left ankle disability, as described above, such pain has not been shown to cause additional limitation of function to such an extent as to be comparable to a 20 percent rating for marked limitation of motion. Indeed, the March 2003 private evaluation indicated that there was no atrophy of the calf muscles and no calf tenderness. His Achilles was not tender and the Thomson test was negative and he had normal strength in the left ankle. In his September 2004 substantive appeal, the Veteran indicated that pain and swelling were increased in his left ankle when standing for long periods of time. He also stated that a few times per month the ankle become more inflamed with increased pain and swelling causing difficulty ambulating without assistance. Even after acknowledging these complaints, the Board is unable to conclude that the disability picture more nearly approximates the criteria for a 20 percent evaluation for the reasons already discussed. The Board has also considered whether any alternate Code sections allow for a higher rating. Diagnostic Code 5270 affords a 20 percent evaluation for ankylosis of the ankle in plantar flexion, to less than 30 degrees. However, none of the medical evidence discussed above has indicated that the Veteran's left ankle is ankylosed. For the same reason, a higher evaluation under Diagnostic Code 5272, for ankylosis of the subastragalar or tarsal joint, is not permitted. There are no other relevant Diagnostic Codes for consideration. In conclusion, the evidence of record shows that the Veteran's disability picture is appropriately reflected by the 10 percent rating for residuals of a left ankle fracture. There is no basis for a higher evaluation. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Again, as discussed above, the Social Security disability determination records as well as the workers' compensation records denote disability due to herniated discs in the lumbar spine and heart disease. In a May 2006 examination, the physician noted that the Veteran complained of pain in his right knee and left ankle which limited his ability to walk a long distance or climb stairs. However, the examiner noted that the Veteran's complaints were credible, but not to the extent that he alleged because he was able to perform his activities of daily living, he was able to drive, and he was able to go out on his own. Hence, the Board finds that the assignment of an extra- schedular evaluation under 38 C.F.R. § 3.321 (2009) is not warranted. ORDER A rating in excess of 10 percent for postoperative residuals of synovitis of the right knee is denied. A rating in excess of 10 percent for residuals of fracture of the left ankle is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs