Citation Nr: 1101630 Decision Date: 01/13/11 Archive Date: 01/20/11 DOCKET NO. 07-09 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an increased rating for status post arthroscopy of the right knee, with partial lateral meniscectomy and posterolateral corner reconstruction, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active military service from September 1990 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2006 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in San Diego, California, in which the RO assigned a temporary 100 percent evaluation under Paragraph 30 for convalescence following surgery of the right knee, from December 13, 2005 to March 31, 2006. The RO further noted that from April 1, 2006, a noncompensable disability rating was warranted for the Veteran's service- connected right knee disability. In April 2006, the Veteran filed a notice of disagreement (NOD) in which he requested an extension of his temporary total rating. Specifically, he maintained that because his convalescent period was extended until May 31, 2006, it followed that his temporary 100 percent rating should be extended until May 31, 2006. The Veteran also disagreed with the noncompensable evaluation assigned to his right knee disability. A statement of the case (SOC) was issued in February 2007. In the SOC, the RO extended the Veteran's temporary 100 percent evaluation under Paragraph 30 for convalescence following right knee surgery, from March 31, 2006 to May 31, 2006. The RO noted that the extension constituted a full grant of benefits sought on appeal and that the appeal was considered satisfied with respect to that issue. The RO further concluded that effective June 1, 2006, a 10 percent rating was warranted for the Veteran's service-connected right knee disability. In March 2007, the Veteran filed a substantive appeal (VA Form 9), in which he continued to express disagreement with the assigned disability rating for his right knee disability. In this regard, as a 10 percent evaluation is not the maximum rating available for this disability, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). In February 2010, the Veteran testified at a videoconference hearing at the RO in San Diego, California before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's claims folder. This case was previously before the Board in April 2010, wherein it was remanded for additional development and due process considerations. The case was returned to the Board for appellate consideration. The issue of entitlement to service connection for depression, secondary to the service-connected right knee disability, has been raised by the record [see Hearing Transcript], but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDING OF FACT Throughout the rating period on appeal, the Veteran's status-post arthroscopy of the right knee with partial lateral meniscectomy and posterolateral corner reconstruction has been manifested by complaints of pain and limitation of motion, but without instability. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for status-post arthroscopy of the right knee with partial lateral meniscectomy and posterolateral corner reconstruction have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5262 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA issued VCAA notice letters, dated in March 2006, May 2008, and April 2010, from the agency of original jurisdiction (AOJ) to the appellant. These letters explained the evidence necessary to substantiate the Veteran's claim of entitlement to an increased disability rating, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. In addition, the March 2006 letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Duty to Assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment and examination. Additionally, the claims file contains the Veteran's own statements in support of his claim. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The record shows that the Veteran has been examined by VA in connection with his claim. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issue on appeal. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Legal Criteria Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where, as here, the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2010). See also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Analysis The Veteran receives a 10 percent disability rating for his status post arthroscopy of the right knee, with partial lateral meniscectomy and posterolateral corner reconstruction pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. See 38 C.F.R. § 4.20. Diagnostic Code 5010 provides that traumatic arthritis is evaluated as degenerative arthritis pursuant to Diagnostic Code 5003. Diagnostic Code 5003 states that degenerative arthritis, substantiated by x-ray findings, is to be evaluated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. However, when 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating is assigned if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating is warranted when x-ray evidence shows involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Ibid. The Veteran experiences some limitation of motion of the knee, and as a result, the rating criteria under Diagnostic Code 5003, for degenerative joint disease without limitation of motion are not for application. The Veteran's right knee disability is rated by analogy to 38 U.S.C.A. § 4.71a, Diagnostic Codes 5260 and 5261. According to Diagnostic Code 5260, a noncompensable rating is assigned when leg flexion is limited to 60 degrees and a 10 percent rating is assigned when leg flexion is limited to 45 degrees. A 20 percent rating requires leg flexion limited to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable evaluation is warranted when leg extension is limited to 5 degrees and a 10 percent evaluation is warranted when leg extension is limited to 10 degrees. A 20 percent evaluation is warranted when leg extension is limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Considering the rating criteria applicable to the Veteran's status post arthroscopy of the right knee, with partial lateral meniscectomy and posterolateral corner reconstruction, the objective clinical evidence of record, throughout the rating period on appeal, does not show that the Veteran has flexion limited to 30 degrees or extension limited to 15 degrees. His range of motion far exceeds these respective limits. Indeed, the medical evidence of record clearly indicates that he has essentially continuously had full extension, and that his flexion, at worst, and fully acknowledging his pain, is still to at least 90 degrees, including at his most recent, June 2010 VA examination. VA considers "full" range of motion for the knee to be from 0 to 140 degrees (full extension to full flexion). See 38 C.F.R. § 4.71, Plate II. There is no objective clinical indication, however, that he has additional functional impairment, above and beyond the 10-percent level, which would support an even higher rating. In this regard, the Board points out that, although the Veteran had limitation of extension by 20 degrees at his June 2010 VA examination, the Veteran's VA treatment records prior to and subsequent to that examination indicate that the Veteran's range of extension was full. Moreover, the Veteran's August 2007 and June 2010 VA examinations were negative for objective evidence of incoordination, subluxation, weakness, abnormal movement, or deformity, although he reports experiencing pain and there was crepitus of the right knee. Likewise, he had full motor strength. Similarly, the Veteran has pain and tenderness in his right knee, but he does not have overall moderate impairment of his tibia and fibula, significant limitation of motion, recurrent subluxation or lateral instability, dislocated semilunar cartilage, or ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5257, 5262. The Board has also considered whether he has additional functional loss - beyond that objectively shown - due to his pain, or because of weakness, premature or excess fatigability, incoordination, etc. See DeLuca v. Brown, 8 Vet. App. 202 (1995), citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. Nonetheless, there is no indication in the record that his functional ability is decreased beyond the limitation of motion already shown on examination, even when his symptoms are most problematic. In particular, the June 2010 VA examiner noted that there was a mild increase in pain upon repetitive use and a loss of motion due to pain, but found that there was no additional weakness, fatigability, incoordination, or lack of endurance. As a result, his current 10 percent rating adequately compensates him for the extent of his pain, including insofar as its resulting effect on his range of motion. The Board has also considered whether the Veteran is entitled to an increased disability evaluation on an extra-schedular basis. However, the Board concludes that the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the Veteran that his status post arthroscopy of the right knee, with partial lateral meniscectomy and posterolateral corner reconstruction, standing alone, resulted in marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of normal rating schedule standards. The Veteran reported that he left his position as a restaurant manager due to prolonged standing, but the June 2010 VA examiner found that the Veteran is not precluded from working in another occupation. Accordingly, the Board finds that this case does not warrant referral to the Director of Compensation and Pension Service for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The claim for a disability rating higher than 10 percent for status post arthroscopy of the right knee, with partial lateral meniscectomy and posterolateral corner reconstruction is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs