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