Citation Nr: 1134878 Decision Date: 09/19/11 Archive Date: 09/23/11 DOCKET NO. 08-06 639A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for degenerative changes of the left knee with limitation of motion. 2. Entitlement to an evaluation in excess of 10 percent for instability of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Scott Shoreman, Associate Counsel INTRODUCTION The Veteran had active service from June 1979 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran previously was assigned a 20 percent evaluation for status post left knee injury with degenerative changes. In a January 2008 rating decision she was assigned the current separate 10 percent evaluations, effective April 3, 2006. FINDINGS OF FACT 1. The degenerative changes of the left knee with limitation of motion are characterized by flexion to 70 degrees, extension to 0 degrees, and tenderness. 2. The instability of the left knee is characterized by no subluxation and medial and lateral meniscus test and ligament stability tests within normal limits. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for degenerative changes of the left knee with limitation of motion have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5010, 5260, 5261 (2010). 2. The criteria for an evaluation in excess of 10 percent for instability of the left knee have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5257 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, and, as discussed below, the Board has found none. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In March 2006 VA sent the Veteran a letter informing her of the types of evidence needed to substantiate her claim and its duty to assist her in substantiating her claim under the VCAA. The letter informed the Veteran that VA would assist her in obtaining evidence necessary to support her claim, such as medical records, employment records, or records from other Federal agencies. She was advised that it is her responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to her claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in her possession to the RO. The Board finds that the content of the letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the May 2006 rating decision, January 2008 SOC, and April 2009 SSOC explained the basis for the RO's action, and the SOC and SSOC provided her with additional periods to submit more evidence. It appears that all obtainable evidence identified by the Veteran relative to her claim has been obtained and associated with the claims file, and that neither she nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of her claims, and to respond to VA notices. In addition to the foregoing harmless-error analysis, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. Since the claim for an increased rating is being denied, no effective date will be assigned, so there can be no possibility of any prejudice to the Veteran. Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising her as to the evidence needed, and in obtaining evidence pertinent to her claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Applicable Law, Regulations, and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. Part 4 (2010). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against an adverse decision based upon a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Also, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II (2010). Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Arthritis due to trauma substantiated to X-ray findings is rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. The Veteran underwent an examination in April 2006 that was arranged through VA QTC services. There was discomfort when sleeping in certain positions, stiffness when sitting in chairs or cars, swelling, heat, and giving way when standing for long periods, and fatigability. Pain occurred two times a day and lasted for an hour at a time, and it traveled up to the thigh and down to the lower leg. The pain was squeezing, burning, aching, sharp, and cramping in nature. The Veteran rated the pain as an 8 out of 10 in severity, and it could be elicited by physical activity and stress. It was relieved by taking Motrin 800 mg. There had not been any prosthetic implants, and the functional impairment was walking, standing and stooping. Gait was abnormal due to a limp and the Veteran did not require an assistive device for ambulation. On examination the left knee showed no signs of edema, effusion, weakness, tenderness, redness, heat, abnormal movement, or guarding of movement. Range of motion in the left knee was flexion to 140 degrees with pain at 130 degrees and extension to 0 degrees. The left knee function was additionally limited 10 degrees by pain and was not additionally limited by fatigue, weakness, lack of endurance or incoordination. Anterior and posterior cruciate ligament stability, medial and lateral collateral ligament stability, and medial and lateral meniscus tests of the left knee were within normal limits. The diagnosis was arthritis, left knee. The examiner wrote that the Veteran was unable to go uphill, stoop, climb or stand for a long period of time. The Veteran had an examination with another examiner in July 2008 that was arranged through VA QTC service. She reported having weakness, stiffness, swelling, heat, lack of endurance, fatigability, and pain that went from the knee to hip. There was not redness, giving way, locking or dislocation. The pain occurred constantly and was burning, aching, sharp and cramping. The Veteran rated the pain as a 6 out of 10 and it could be elicited by physical activity and working (getting up and down). It was relieved by Motrin, and the Veteran could function through the pain with the medication. There had not been any prosthetic implants of the joint and the Veteran did not report any functional impairment. The Veteran used a brace on the left knee for ambulation and examination of the feet did not show signs of abnormal weight bearing or breakdown, callosities or any unusual shoe wear pattern. The left knee showed no signs of edema, effusion, weakness, redness, heat, guarding of movement, or subluxation. On examination there was no locking pain, genu recurvatum or crepitus. Range of motion was 70 degrees flexion with pain at 70 degrees and 0 degrees flexion. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Anterior and posterior cruciate ligament stability, medial and lateral collateral ligaments, and medial and lateral meniscus tests of the left knee were within normal limits. The examiner diagnosed the Veteran with status post left knee trauma with slight instability and degenerative changes of the left knee. The rationale was subjective pain, weakness and stiffness, tenderness, and limited range of motion. The effect of the left knee disorder on the Veteran's daily activity was described as "normal." There are no relevant treatment records that have been associated with the claims file. Reviewing the evidence of record, the Veteran is not entitled to an evaluation in excess of 10 percent for degenerative changes of the left knee with limitation of motion under Diagnostic Code 5010, because there is no X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating episodes. See 38 C.F.R. § 4.71a, DCs 5003, 5010. Furthermore, the Veteran is not entitled to an evaluation of 20 percent for limitation of flexion because it was not limited to 30 degrees at either examination. See 38 C.F.R. § 4.71a, DC 5260. At the April 2006 examination, flexion was to 140 degrees and at the July 2008 examination it was to 70 degrees. The Veteran is not entitled to an evaluation of 20 percent for limitation of extension because it is not limited to 15 degrees. See 38 C.F.R. § 4.71a, DC 5261. At both examinations extension was to 0 degrees. The record does not indicate that the Veteran has had ankylosis of the left knee, and therefore an increased evaluation is not available under Diagnostic Code 5256. See 38 C.F.R. § 4.71a. In addition, the Veteran is not entitled to an evaluation in excess of 10 percent for instability of the left knee. At the April 2006 and July 2008 examinations the stability tests of the left knee were within normal limits. The July 2008 examination report indicates that there was no subluxation. The Board finds that the level of instability in the Veteran's left knee is not of a moderate level of severity, as required for a 20 percent evaluation under Diagnostic Code 5257. See 38 C.F.R. § 4.71a. The examination results do not indicate cartilage, semilunar, dislocated, with frequent episodes of "locking" pain, and effusion into the joint. Therefore an evaluation of 20 percent is not available under Diagnostic Code 5258. See id. Furthermore, an evaluation in excess of 10 percent is not available under Diagnostic Code 5259, cartilage, semilunar, removal of, symptomatic, and the record does not show impairment of the tibia and fibula, and therefore an evaluation in excess of 10 percent cannot be assigned under Diagnostic Code 5262. See id. It is also noted that the Veteran did not meet the criteria for an evaluation in excess of 20 percent for the period prior to April 3, 2006, during which time she had a combined evaluation for her left knee disabilities. Under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca, 8 Vet. App. 202 (1995), we are required to consider the Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation-of-motion diagnostic codes. Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston, 10 Vet. App. at 85. However, under Spurgeon v. Brown, 10 Vet. App. 194 (1997), the Board is not required to assign a separate rating for pain alone. The Board recognizes the limitations that the Veteran has as a result of her service-connected degenerative changes of the left knee with limitation of motion and instability of that knee, but the current disability evaluations contemplate these limitations. It is also noted that the July 2008 examiner opined that left knee joint function was not additionally limited by pain, fatigue, weakness, or lack of endurance or incoordination after repetitive use. The April 2006 the examiner opined that joint function was limited by pain after repetitive use but that it was not additionally limited by fatigue, weakness, lack of endurance or incoordination. Therefore, evaluations in excess of 10 percent are not justified. Given the Veteran's complaints associated with employment, the Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008). The record reflects that the Veteran has not required frequent hospitalization for the left knee disabilities, and that the manifestations of the disabilities are not in excess of those contemplated by the assigned rating. Further, although the Veteran experiences occupational impairment, there is no indication in the record that the average industrial impairment from the disabilities would be in excess of that contemplated by the assigned ratings. The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Finally, in light of the holding in Hart, supra, the Board has considered whether the Veteran is entitled to "staged" ratings for her service-connected degenerative changes of the left knee with limitation of motion and instability of the left knee, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. Accordingly, the preponderance of the evidence is against the claim for evaluations in excess of 10 percent for degenerative changes of the left knee with limitation of motion, and for instability of the left knee. Therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Entitlement to an evaluation in excess of 10 percent for degenerative changes of the left knee with limitation of motion is denied. Entitlement to an evaluation in excess of 10 percent for left knee instability is denied. ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs