Citation Nr: 1124530 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 07-36 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for postoperative residuals of the right knee medial meniscus with degenerative changes. 2. Entitlement to a disability rating in excess of 10 percent for limitation of motion of the right knee due to degenerative changes. 3. Entitlement to a disability rating in excess of 20 percent for residuals of a non-displaced fracture of the sacral spine. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active duty service from January 1961 to January 1964 and from July 1964 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Houston, Texas, Regional Office (RO). In March 2011, the Veteran testified before the undersigned at the RO. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran right knee disability is characterized by severe instability but without evidence of this disability causing hospitalizations or marked interference with employment. 2. The Veteran's right knee disability is also characterized by complaints of pain when walking, flexion to 90 degrees and extension to 10 degrees, with no further limitation of motion due to additional functional impairment during flare-ups. 3. The Veteran's service-connected non-displaced fracture of the sacral spine is productive of flexion of the thoracolumbar spine to 40 degrees, with no further limitation of motion due to additional functional impairment during flare-ups, and without neurological abnormalities associated with his back disability. 4. The Veteran has not been prescribed bed rest by a physician due to his disc disease. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for postoperative residuals of the right knee medial meniscus with degenerative changes have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5257 (2010). 2. The criteria for an evaluation in excess of 10 percent for limitation of motion of the right knee due to degenerative changes have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5261 (2010). 3. The criteria for an evaluation in excess of 20 percent for residuals of a non-displaced fracture of the sacral spine have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5235 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. Under these circumstances, such notice errors may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also 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 an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied through letters dated in May 2004, which was prior to the initial adjudication of the claims, and June 2006, which was following the initial adjudication of the claims. Furthermore, the Veteran was provided with the criteria used to rate his disabilities in the November 2007 statement of the case. As such, he had actual knowledge of the applicable rating criteria. Thereafter, the claims were readjudicated with the issuance of a supplemental statement of the case in June 2010. Consequently, the Board finds that any timing deficiency has been appropriately cured and that such deficiency did not affect the essential fairness of the adjudication. Next, VA has a duty to assist the Veteran in the development of the claims. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2010). The RO has obtained the Veteran's VA treatment records. Furthermore, the Veteran was afforded VA examinations in May 2004 and May 2010 that addressed the Veteran's claims. Both examiners were medical professionals who took down the Veteran's history, examined the Veteran, and provided conclusions based on the examinations that were consistent with the record. The examinations are found to be adequate. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's written and oral statements are of record. No available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Under 38 C.F.R. §§ 4.40 and 4.45, a Veteran's pain, swelling, weakness, and excess fatigability must be considered when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The Court held in DeLuca v. Brown, 8 Vet. App. 202 (1995), that all complaints of pain, fatigability, etc., shall be considered when put forth by a veteran. Therefore, consistent with DeLuca and 38 C.F.R. § 4.59 (which requires consideration of painful motion with any form of arthritis), the Veteran's complaints of pain have been considered in the Board's review of the diagnostic codes for limitation of motion. Right Knee The Veteran's right knee disability is assigned a 30 percent rating under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5010-5257 (2010) and a 10 percent rating under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5010-5261 (2010). Diagnostic Code 5010 provides that arthritis, due to trauma, substantiated by x-ray findings, is to be rated as arthritis, degenerative. Under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2010), arthritis, degenerative, established by x-ray findings, is 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 code, 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. 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 10 percent rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating is warranted for the same symptomatology with occasional incapacitating exacerbations. Here, as described below, the Veteran does have compensable limitation of motion of his right knee. Therefore, consideration of a 10 or 20 percent disability rating under the criteria of Diagnostic Code 5003 is not for application. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2010), a maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability of the knee. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2010), flexion of the leg limited to 60 degrees warrants a 0 percent rating, 45 degrees warrants a 10 percent rating, 30 degrees warrants a 20 percent rating, and 15 degrees warrants a 30 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2010), extension of the leg limited to 5 degrees warrants a 0 percent rating, 10 degrees warrants a 10 percent rating, 15 degrees warrants a 20 percent rating, 20 degrees warrants a 30 percent rating, 30 degrees warrants a 40 percent rating, and 45 degrees warrants a 45 percent rating. A January 2003 VA treatment record shows that the Veteran had constant pain in his knee that sometimes affected his ability to walk and work. Range of motion was 0 to 100 degrees with crepitus. There was pain with range of motion. X-rays revealed advanced degenerative changes. The Veteran was told that he needed a total knee arthroplasty, but he stated that he could not take the time off of work. In May 2004, the Veteran underwent VA examination. The Veteran indicated that he was unemployed. He used an ace wrap for his knee and walked with a cane. He reported progressively worsening pain and popping in his right knee. He had a lack of range of motion. The Veteran had difficulty with prolonged standing or walking and was unable to climb, squat, or kneel. On examination, the Veteran lacked 10 degrees of full extension. He had flexion to 90 degrees. He had significant bony hypertrophy along the medial aspect of the joint line. He had valgus pseudolaxity. The Veteran had significant crepitation and moderate effusion. X-rays revealed severe degenerative joint disease with medial subluxation of the femur. The impression was severe degenerative joint disease of the right knee. In May 2010, the Veteran underwent VA examination. The Veteran reported popping, locking, and swelling of his knee. He could walk a half a block with a cane or crutches. His knee gives way, and he has fallen several times. The Veteran retired in 2002. He described flare-ups with increased activities. He was unable to squat or kneel. The Veteran had trouble getting in and out of a chair without using the maximal strength of his arms. He described no incapacitating events. On examination, the Veteran had a very large medial osteophyte, and the hamstring tendons popped across the osteophyte with any active or passive flexion and extension. This caused significant pain. There was no effusion, but there was crepitus with range of motion. The Veteran had a small posterior Baker's cyst, which was mildly tender. There was quad atrophy on the right as compared to the left, and the Veteran had an antalgic gait. Range of motion of the right knee was 5 degrees to 110 degrees in active, passive, and resistance motion. There was crepitus but no pain, fatigue, weakness, or incoordination with repetitive motion. The Veteran did have obvious pain in the knee with walking. The pain and instability limited his activities. The Veteran required crutches or a cane to prevent falls. X-rays done in October 2009 revealed advanced degenerative arthritis with marked narrowing of the joint spaces, sclerotic articular margins, and marginal spurs. The soft tissues were normal. In March 2011, the Veteran's representative testified that the Veteran complained of popping, locking, and swelling in his right knee. He had to use crutches all of the time. The representative acknowledged that the Veteran received the maximum rating under Diagnostic Code 5257 but suggested that perhaps the Veteran's right knee could be rated analogously to Diagnostic Codes 5256 or 5262. As noted above, and acknowledged by the Veteran's representative, the Veteran is currently in receipt of the maximum schedular disability rating for subluxation or lateral instability of his knee under Diagnostic Code 5257. To the extent that the Veteran may be seeking an extraschedular rating under these particular criteria, this will be addressed below. Regarding the Veteran's 10 percent rating under the criteria of Diagnostic Code 5010-5261, a rating in excess of 10 percent is not warranted because there is no evidence that extension of the Veteran's right leg was ever limited to 15 degrees, even when taking into account the effects of flare-ups. Specifically, while the Veteran certainly complained of pain in his right knee, the evidence shows that this pain never caused functional impairment of the right knee in excess of extension limited to 10 degrees. The May 2010 VA examiner specifically commented that the Veteran did not experience additional symptoms after repetitive movements that caused any additional functional impairment. As such, a rating in excess of 10 percent is not warranted under the criteria of Diagnostic Code 5261. Likewise, the Veteran's flexion of the right leg was never shown to be limited to at least 45 degrees, such that a compensable disability rating would be warranted for flexion of the right knee. Such limitation is also not shown to have existed on the basis of flare-ups or increased functional impairment. Therefore, a rating under Diagnostic Code 5260 is not warranted. Furthermore, while the Veteran's representative has suggested that the Veteran's right knee disability could be rated under Diagnostic Code 5256 or 5262, the Board finds that neither of these sets of criteria apply in this case. There is no evidence of ankylosis of the Veteran's knee or impairment of the tibia and fibula or any similar findings. As such, these rating criteria are not for application in this case, and ratings in excess of 30 percent and 10 percent are not warranted for the Veteran's right knee disability. Back The Veteran filed his claim for an increased rating for his non-displaced fracture of the sacral spine in November 2003. The Veteran's back disability is rated 20 percent disabled under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5285-5295 (2002). Under the revised criteria, in effect since September 26, 2003, the Veteran's disability would be rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5235 (2010), for vertebral fracture or dislocation. Under the General Rating Formula for Diseases and Injuries of the Spine (in effect from September 2003), with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is warranted for unfavorable ankylosis of the entire spine. Note 1 directs that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated, separately, under an appropriate diagnostic code. Intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months warrants a 20 percent rating, and higher ratings are assigned for longer periods of incapacitation. Note 1 states that, for purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. A January 2003 VA outpatient treatment record shows that the Veteran complained of constant pain in his back on a level of 10/10. After evaluation, there was no EMG evidence of acute lumbar radiculopathy. However, there was evidence of inactive L4/L5 radiculopathy. A March 2004 VA treatment report shows that the Veteran complained of back pain but denied associated symptoms, including urinary distress of any kind. In May 2004, the Veteran underwent VA examination. His back and sacrum had become more symptomatic with time. He did some occasional twisting in bed, which caused his back to pop. Then, his back would hurt for three to four days afterward. He described primarily right-sided low back pain without significant radicular symptoms. On examination, flexion was to 40 degrees, extension was to 10 degrees, and right and left side bending was to 15 degrees. Neurological evaluation was unremarkable. The diagnosis was fractured sacrum with moderate degenerative disc disease. In May 2010, the Veteran underwent VA examination. He described pain across his lower back, which did not wake him up at night. He denied any bowel or bladder incontinence or radicular leg symptoms. He described no flare-ups or incapacitating events. He had no surgery or hospitalization for his back. On examination, deep tendon reflexes were 1+ at the knees and absent at both ankles. Motor function was 5/5 in all muscle groups in the lower extremities. There was significant tenderness to palpation over the right sacroiliac joint and right half of the sacrum. There were no spasms. Distal sensation was intact throughout. Forward flexion was to 70 degrees, extension was to 30 degrees, left and right lateral bending was to 30 degrees, and left and right rotation was to 30 degrees. There was no pain, fatigue, weakness, or incoordination with repetitive motion in any plane. MRI showed minimal disc bulges at L4-5 and L5-S1 with no lumbar canal stenosis or foraminal narrowing. The examiner commented that the Veteran had degenerative disc disease of the lumbar spine that was mild to moderate. Based on a review of the record, the Board finds that a disability rating in excess of 20 percent is not warranted for the Veteran's residuals of non-displaced fracture of the sacral spine. Specifically, there is no evidence that flexion of the Veteran's thoracolumbar spine was ever limited to 30 degrees or less or that the Veteran ever demonstrated ankylosis of any portion of his spine. The May 2004 VA examination report shows that the Veteran's flexion was to 40 degrees, and the May 2010 VA examination report shows flexion to 70 degrees, and there is no evidence in either examination report or any other record that there was additional functional impairment that resulted in flexion of the thoracolumbar spine limited to 30 degrees or less. Furthermore, the competent evidence of record indicates that the Veteran has experienced no neurological abnormalities associated with his back disability. In May 2010, he denied radicular symptoms, bowel and bladder incontinence, and any associated neurological symptoms. As such, a higher disability rating is not warranted for the Veteran's lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. Furthermore, there is no evidence of any incapacitating episodes as a result of the Veteran's disc disease. This was specifically stated in the May 2010 VA examination report, and there are no records even suggesting that the Veteran experienced any incapacitating episodes during which bed rest was prescribed by a physician. As such, a disability rating in excess of 20 percent is not warranted for the Veteran's residuals of non-displaced fracture of the sacral spine, under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Extraschedular Consideration and Conclusion The Board has also considered the applicability of other diagnostic codes for rating these disabilities, but finds that no other diagnostic codes provide a basis for higher rating. The disabilities also have not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule. The Board further finds there is no evidence of any unusual or exceptional circumstances, such as frequent periods of hospitalization, related to the service-connected disorders discussed above that would take the Veteran's case outside the norm so as to warrant an extraschedular rating. The present service-connected disorders on appeal are adequately rated under the available schedular criteria. Pain and some degree of interference with employment are contemplated by the schedular guidelines for each of the service connected disorders discussed above. The Board notes the Veteran has other service and nonservice-connected disabilities and is in receipt of a total disability rating due to unemployability, based upon service-connected disabilities. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Additionally, for all the reasons explained above, the Board finds that there is no basis for staged ratings of the Veteran's service-connected disabilities discussed above, see Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999), and that the claims for a higher disability rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of higher ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A disability rating in excess of 30 percent for postoperative residuals of the right knee medial meniscus with degenerative changes is denied. A disability rating in excess of 10 percent for limitation of motion of the right knee due to degenerative changes is denied. A disability rating in excess of 20 percent for residuals of a non-displaced fracture of the sacral spine is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs