Citation Nr: 1109765 Decision Date: 03/11/11 Archive Date: 03/24/11 DOCKET NO. 09-38 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an award of service connection for post-traumatic degenerative joint disease of each knee, prior to August 30, 2001. 2. Entitlement to an initial evaluation in excess of 10 percent for post-traumatic degenerative joint disease of the right knee. 3. Entitlement to an initial evaluation in excess of 10 percent for post-traumatic degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from November 1954 to October 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted the Veteran's claim for service connection for post-traumatic degenerative joint disease of each knee. A 10 percent rating was assigned for each knee, effective August 30, 2001. The Veteran has disagreed with both the evaluation assigned for each knee and with the effective date of the award of service connection. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. By rating decision dated January 1993, the RO denied service connection for a bilateral knee disability. The Veteran was notified of this determination, but did not perfect an appeal. 2. The Veteran submitted a claim for service connection for a bilateral knee disability on August 30, 2001. Service connection was ultimately granted on the basis of receipt of new and material evidence. The effective date assigned was the date of the receipt of the claim to reopen. 3. The Veteran's right knee disability is manifested by evidence of arthritis and no more than slight limitation of motion and crepitation. There is no objective evidence of instability. 4. The Veteran's left knee disability is manifested by evidence of arthritis and no more than slight limitation of motion. There is no clinical evidence of instability. CONCLUSIONS OF LAW 1. The criteria for an effective date for an award of service connection for post-traumatic degenerative joint disease of each knee, prior to August 30, 2001, have not been met. 38 U.S.C.A. § 5101 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400(b)(2), (r) (2010). 2. The criteria for an initial evaluation in excess of 10 percent for post-traumatic degenerative joint disease of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2010). 3. The criteria for an initial evaluation in excess of 10 percent for post-traumatic degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant 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) (2010). The notice requirements of the VCAA require VA to notify a 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; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2010). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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 this case, in February 2003, and June 2007, letters, issued prior to the rating decision on appeal, the VA provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, to include what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The June 2007, letter also advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. In any event, both the effective date and increased rating claims arise from the initial award of service connection for post-traumatic degenerative joint disease of each knee. In Dingess, the United States Court of Appeals for Veterans Claims held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2010). Thus, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include VA outpatient treatment records, VA examination reports, a statement from the Veteran's sister, and his testimony at a hearing at the RO. As discussed above, the appellant was notified and aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by responding to notices, submitting evidence, and providing testimony. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Effective date A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA may be considered an informal claim. 38 C.F.R. § 3.155. Except as otherwise provided, the effective date of an evaluation and award of service connection shall be the day following separation from active service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2). The effective date for an award of service connection based on a reopened claim shall be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The record discloses the Veteran submitted an initial claim for service connection for several disabilities, including the left knee, in March 1978. By letter dated April 1978, the RO informed the Veteran it had no record of his claimed disabilities. In a statement received in December 1992, the Veteran sought to reopen his claim for service connection for both knees. This claim was denied by the RO in a January 1993 rating action. While the Veteran filed a notice of disagreement with this determination, he failed to submit a substantive appeal following the statement of the case issued in July 1994. Thus, the January 1993 rating decision became final. See 38 U.S.C.A. § 7105 (West 2002). The Board notes a claim for service connection for bilateral knee disabilities was received on August 30, 2001. This claim was denied by the RO in an April 2003 rating action. The Veteran filed a timely appeal to the Board which remanded the claim in December 2006. A July 2008 Board decision found new and material evidence had been received, and reopened the claim. The claim for service connection for a bilateral knee disability on the merits was remanded for additional development. Pursuant to this, the RO, by rating action dated August 2008, granted service connection for post-traumatic degenerative joint disease of each knee. The regulations require that a claim must be filed and, in this case, following the RO's denial in January 1993, the next communication from the Veteran was received on August 30, 2001. In the absence of a claim of clear and unmistakable error (CUE) in the prior determination, there is no basis for an earlier effective date. 38 C.F.R. § 3.400(r). The Board notes that a CUE claim has not been filed. Thus, in the case, the law is dispositive of the claim, and it should be denied because of lack of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). During the hearing at the RO, it was argued that the proper effective date should be December 11, 1992, the date the Veteran submitted a Statement in Support of Claim in which he requested his claim for service connection be reopened. It was asserted that, following the issuance of the statement of the case in July 1994, the Veteran submitted a request for a copy of his medical records for a hearing, and that this should have been deemed to be a substantive appeal. (The Board notes the Veteran failed to appear at the hearing.) This statement, however, did not set out specific arguments relating to errors of fact or law made by the RO in reaching the determination being appealed. Thus, it cannot be considered to be a substantive appeal. See 38 C.F.R. § 20.202 (2010). In reaching this decision, the Board notes that the effective date of service connection cannot be based on the date of the earliest medical evidence showing that the Veteran had a bilateral knee disability that is related to service. It must be based on the date that the application upon which service connection was eventually awarded was filed with VA. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) (Since the appellant had not been granted service connection for his anxiety disorder, the mere receipt of medical records cannot be construed as an informal claim). Hence, although the Veteran has submitted private medical records reflecting treatment for bilateral knee disabilities prior to August 30, 2001, this fact is essentially irrelevant. The provisions of 38 C.F.R. § 3.157 are, therefore, inapplicable. In summary, pursuant to 38 C.F.R. § 3.400(b)(2)(i) and (r), the effective date for the grant of service connection for post-traumatic degenerative joint disease of each knee could not legally be earlier than August 30, 2001. II. Increased rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson, 12 Vet. App. 119; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Arthritis due to trauma, substantiated by X-ray findings, will be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis 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 however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, no 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. In the absence of limitation of motion, a 20 percent evaluation will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbation. A 10 percent evaluation will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A 30 percent rating may be assigned when flexion of the leg is limited to 15 degrees. When flexion is limited to 30 degrees, a 20 percent evaluation may be assigned. When flexion is limited to 45 degrees, a 10 percent rating is assignable. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 50 percent evaluation may be assigned when extension of the leg is limited to 45 degrees. When extension is limited to 30 degrees, a 40 percent evaluation is assignable. When limited to 20 degrees, a 30 percent rating may be assigned. When extension is limited to 15 degrees, a 20 percent evaluation may be assigned. When limited to 10 degrees, a 10 percent evaluation may be assigned. When extension is limited to 5 degrees, a noncompensable will be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The evidence supporting the Veteran's claim includes his statements and some of the medical findings of record. The Veteran's sister wrote in October 2007 that the Veteran cannot carry heavy packages without pain, and that he has great difficulty walking up steps. The Board notes when he was seen in a VA outpatient treatment clinic in March 2002, the Veteran reported increasing knee pain for 15 years. An examination revealed effusion, crepitation and limitation of motion. On VA examination in June 2002, the Veteran stated he had occasional locking and constant swelling of his left knee. He also indicated his right knee became swollen if he stood for too long. It was noted in November 2007 that he used a nonsteroidal cream for his knees every day. On VA examination in August 2008, the Veteran asserted he used a cane for walking. He claimed he was only able to walk a few yards. An examination of the right knee was positive for limitation of motion, crepitation, grinding, and a meniscus abnormality. McMurray's test was positive. The left knee examination was positive for limitation of motion and grinding. The evidence against the Veteran's claim includes the medical findings on examination. The Board concedes that there is limitation of motion of each knee. It has not, however, been shown to be to a compensable degree. In this regard, the Board notes that range of motion of the right knee was from 0 to 115-120 degrees in March 2002; within normal limits on the June 2002 VA examination; from 0 to 120 degrees in November 2007; and from 0 to 70 degrees on the August 2008 VA examination. Range of motion of the left knee was from 0 to 105-108 degrees in March 2002; normal in June 2002; from 0 to 120 degrees in November 2007; and from 0 to 80 degrees on the August 2008 VA examination. Again, while limited to some degree, the Veteran's range of motion does not even warrant a compensable evaluation per the diagnostic criteria outlined above. The Veteran has reported pain, and it is acknowledged that he is competent to report such symptomatology. However, the Board finds more probative the objective findings that fail to indicate pain at any point within the Veteran's range of motion and with no change in motion on repetition. The pain and limitation of motion are contemplated in the evaluations that have been assigned. Thus, based on the limitation of motion present, a higher rating is not warranted. The Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40 and 4.45 would warrant a higher rating for either knee disability. See Spurgeon v. Brown, 10 Vet. App. 194 (1997); and DeLuca v. Brown, 8, Vet. App. 202 (1995). In this regard, the Board points out that while the Veteran has complained of bilateral knee pain, there is no objective showing that any such pain resulted in additional functional limitation sufficient to conclude that the disability picture most nearly approximates the next-higher 20 percent rating. Indeed, the VA examinations showed no additional limitation of motion on repetitive use. Thus, the 10 percent rating for each knee adequately addresses the subjective complaints and the objective findings regarding the Veteran's right and left knee disabilities. Deluca, 8 Vet. App. 202. The Board also notes that the VA General Counsel has held that separate ratings may be assigned for compensable limitation of flexion and extension of the knee. VAOPGCPREC 9-2004. However, at no time during the course of the appeal has the evidence demonstrated either loss of flexion and extension to a compensable degree. Accordingly, assignment of separate evaluations for limited flexion and extension of the either knee is not appropriate here. Moreover, as instability has not objectively shown on the VA examinations, a separate rating for arthritis and instability is not warranted. VAOPGCPREC 9-98 and 23-97. The Board has also considered whether the Veteran's service-connected knee disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2010); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provides for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An effective date for an award of service connection for post-traumatic degenerative joint disease of each knee, prior to August 30, 2001, is denied. An initial evaluation in excess of 10 percent for post-traumatic degenerative joint disease of the right knee is denied. An initial evaluation in excess of 10 percent for post-traumatic degenerative joint disease of the left knee is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs