Citation Nr: 1242002 Decision Date: 12/10/12 Archive Date: 12/20/12 DOCKET NO. 09-29 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating for residuals of a left knee injury, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for post-operative residuals of a right knee medial meniscectomy, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from August 1989 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied ratings in excess of 10 percent for residuals of a left knee injury, and for post-operative residuals of a right knee medial meniscectomy. The record reflects that the Veteran requested, but then failed to report for, a hearing at the RO, scheduled in June 2011 before a decision review officer (DRO). Thereafter, in February 2012, the Veteran failed to report for a hearing scheduled before a Veterans Law Judge at the RO and has neither submitted good cause for failure to appear or requested to reschedule the hearing. Therefore, the Board deems his hearing request withdrawn, and will proceed accordingly. See 38 C.F.R. § 20.704(d) (2012) FINDINGS OF FACT 1. The Veteran's service-connected post-operative residuals of a right knee medial meniscectomy have been manifested by no more than pain, weakness, swelling, and stiffness, with increased pain due to activity and repetition, and range of motion limited to 0 degrees of extension and 125 degrees of flexion, with pain at 90 degrees; there is no clinical manifestation of instability and no evidence of arthritis. 2. The Veteran's service-connected residuals of a left knee injury have been manifested by no more than pain, weakness, swelling, and stiffness, with increased pain due to activity and repetition, and range of motion limited to 0 degrees of extension and 110 degrees of flexion, with pain at 100 degrees; there is no clinical manifestation of instability and no evidence of arthritis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for post-operative residuals of a right knee medial meniscectomy, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1 , 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 459, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2012). 2. The criteria for a rating in excess of 10 percent for residuals of a left knee injury, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1 , 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 459, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 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; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial 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). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). 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. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In a claim for increase, the VCAA requirement is for 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 (Fed.Cir. 2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2006 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. This letter informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board also notes that in the July 2006 letter, the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. The RO has obtained all identified and available treatment records for the Veteran, and he underwent a VA examination in July 2009 to assess the severity of his service-connected knee disabilities. The Board notes that the July 2009 VA examination included a history obtained from the Veteran, as well as a report of the physical examination findings, along with diagnoses/opinions, which were supported in the record. Although there is no indication as to whether the Veteran's claims folder was reviewed, it is apparent, by reading the medical history portion of the examination report, that the VA examiner in July 2009 was aware of the pertinent medical history in this matter; thus, the Board finds that the July 2009 VA examination report is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). Further, it appears that all obtainable evidence identified by the Veteran/appellant relative to his claims has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him 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, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in advising him of the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background In June 2006, the Veteran claimed entitlement to increased ratings for his service-connected bilateral knee disabilities. On the VA examination in July 2009, the Veteran reported a medical history that the initial knee injuries were "twisting injuries" and occurred between 1990 and 1991. He reported he had had four surgeries on the left knee and three surgeries on the right knee, with the last right knee surgery in 1997 and the last left knee surgery in 1999. He currently complained of chronic pain, weakness, swelling, stiffness, and instability of both knees, and that the pain was made worse with prolonged walking, standing, sitting, stair climbing, and weather changes. He reported using heat and ice, and that his knee occasionally gave out on him. He reported wearing bilateral knee braces. He reported no restrictions on his employment as a police officer. He indicated he had difficulty getting in and out of his cruiser. He could do normal routine daily activities, but going up and down stairs increased his pain. Physical examination of the right knee showed no warmth, swelling, or atrophy. The Drawer and McMurray signs were negative, and there was no instability present. He had medial joint line tenderness, and crepitations were present with range of motion. Range of motion of the right knee was from 0 to 125 degrees, with pain starting at 90 degrees of flexion. Examination of the left knee showed no warmth, swelling, or atrophy. The Drawer and McMurray signs were negative, and there was no instability present. He had medial joint line tenderness, and crepitations were present with extension and flexion. Range of motion of the left knee was from 0 to 110 degrees, with pain starting at 100 degrees of flexion. It was noted that muscle strength against resistance in both knees increased the pain. After repetitive flexion and extension, the Veteran's pain, weakness, fatigability, and incoordination showed no change, and he had the same range of motion, but increased pains were noted on examination. He denied flare-ups, and his knee pain was reported to be chronic. Examination showed no instability of the right or left knee. X-rays of the knees were reported to show no significant abnormality in either knee. The diagnoses were postoperative medial meniscectomy of the right and left knees, with residuals which included decreased range of motion. III. Analysis Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 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). 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). By way of history, the Board notes that in a March 1994 rating decision, the RO granted service connection and a non-compensable (0 percent) disability rating for postoperative residuals, right knee medial meniscectomy, pursuant to Diagnostic Code (DC) 5259, and granted service connection and a non-compensable disability rating for residuals, left knee injury, pursuant to DC 5257. By August 1999 rating decision, the RO granted increased, 10 percent, ratings for the service-connected postoperative residuals, right knee medial meniscectomy, and the service-connected residuals, left knee injury, pursuant to DC 5257. By January 2007 rating decision, the RO denied ratings in excess of 10 percent for the service-connected postoperative residuals, right knee medial meniscectomy, and for the service-connected residuals, left knee injury, after considering the provisions of DC's 5257, 5260, 5261, and 5262. Herein, the Board will consider the Veteran's appeal of the January 2007 RO rating decision. DC 5257 provides ratings based on recurrent subluxation or lateral instability of the knee. A 10 percent evaluation is warranted for slight recurrent subluxation or lateral instability; and a 20 percent evaluation is warranted for moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. The terms "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Pursuant to DC 5260, which provides ratings based on limitation of flexion of the leg, a 10 percent rating is warranted where knee flexion is limited to 45 degrees; and a 20 percent rating is warranted where knee flexion is limited to 30 degrees. 38 C.F.R. § 4.71a, DC 5260. Pursuant to DC 5261, which provides ratings based on limitation of extension of the leg, a 10 percent rating is warranted where knee extension is limited to 10 degrees; and a 20 percent rating is warranted where knee extension is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5261. With regard to range of motion, 38 C.F.R. § 4.71, Plate II, reflects that normal range of motion of a knee is from 0 degrees of extension to 140 degrees of flexion. In a July 1997 opinion, the VA General Counsel concluded that a claimant who had arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, and that evaluation under both of these codes would not amount to pyramiding under 38 C.F.R. § 4.14. However, it was noted that a separate rating must be based on additional disability. Where a knee disorder is already rated under DC 5257, a veteran must also exhibit compensable limitation of motion under DCs 5260 or 5261 in order to obtain the separate rating for arthritis. VAOPGCPREC 23-97, July 1, 1997. Thereafter, the VA General Counsel concluded that for a knee disability rated under DC 5257, a separate rating for arthritis may also be based on x-rays findings and painful motion pursuant to 38 C.F.R. § 4.59. VAOPGCPREC 9-98, August 14, 1998. Pursuant to DC 5262, malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; and malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent. 38 C.F.R. § 4.71a, DC 5262. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that diagnostic codes that provide a rating solely on the basis of loss of range of motion must consider 38 C.F.R. §§ 4.40 and 4.45 (regulations pertaining to functional loss of the joints due to pain, etc.). Therefore, to the extent possible, the degree of additional range of motion loss due to pain, weakened movement, excess fatigability, or incoordination should be noted. Additionally, it is the intent of the rating schedule to recognize actually painful joints due to healed injury as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 1. Discussion The Veteran essentially contends that his service-connected right and left knee disabilities are more severe than reflected in the current 10 percent ratings. The record reflects that the Veteran's service-connected right and left knee disabilities have basically been each rated as 10 percent disabling under DC 5257, which provides that recurrent subluxation or lateral instability of the knee warrants a 20 percent disability rating when moderate. However, based on the evidence of record, the Board concludes that the criteria for ratings in excess of 10 percent, for the service-connected right knee disability and the service-connected left knee disability have not been met. The Board initially notes that the Veteran's current symptoms related to his right and left knees does not support an increased rating under DC 5257 for either knee. In that regard, the competent medical of evidence consists primarily of a VA examination in 2009, as the VA treatment records submitted do not show current treatment for or examination of either knee. The VA examination in 2009 showed that the Veteran complained of various symptoms, including chronic bilateral knee pain, weakness, swelling, stiffness, and instability and reported that his knee pain was made worse with activity and weather changes. Additionally, the clinical examination showed limitation of motion of both knees, with pain at the end ranges of motion, along with tenderness and crepitus. However, in 2009, the Veteran reported no restrictions on his employment and denied flare-ups. With regard to DC 5257, the Board concludes that the competent evidence of record does not support an increased rating for the service-connected right or left knee disabilities under DC 5257, based on moderate recurrent subluxation or lateral instability. Although in 2009 the Veteran complained of instability in both knees, that his knees occasionally give out on him, and that he wore bilateral knee braces, on objective examination of the knees, there was no instability present, McMurray sign was negative, and there was no ballottement. Thus, the Board finds the Veteran's service-connected right and left knee disabilities are manifested by no more than slight knee impairment under DC 5257, and there is no evidence of moderate knee impairment, of either knee, due to recurrent subluxation or lateral instability. And although prior treatment records, dated prior to the Veteran's various knee surgeries, suggest he wore a knee brace due to complaints of his knees giving way, such instability is found to be no more than slight in degree. Additionally, there is not sufficient additional disability of the left knee to approximate a finding of moderate impairment of the knee, even considering the Veteran's complaints of pain. With regard to the Veteran's and his representative's assertions, that his service- connected knee disabilities have worsened, and specifically, that he has instability and giving away of his knees, the Board recognizes that the Veteran is competent to report the symptomatology he experienced as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in this case, the Board finds the statements of the Veteran and his representative to be inconsistent with the overall medical evidence of record as there are no VA treatment records showing recent treatment or evaluation of his service-connected knee disabilities, and the clinical findings shown in 2009 simply do not support the assignment of a rating in excess of 10 percent for either the service-connected right or left knee disabilities, at any point during the pertinent appeal period. Hart v. Mansfield, supra. In that regard, the Board places greater probative weight to the actual clinical evaluation. In this case, the Board concludes that the medical evidence of record is persuasive that an increased rating for either service-connected knee disability, under the provisions of DC 5257, is not warranted. The Board also notes that increased ratings are not warranted based on either right or left knee limitation of motion. Although the objective clinical examination in 2009 showed some limitation of motion of the right and left knees, the requirements for a 10 percent rating, let alone a compensable rating, under either DC 5260 or 5261, have not been met. Additionally, prior and current medical records related to the Veteran's knees, including x-ray reports, have not shown evidence of any arthritis. On the examination in 2009, repeated range of motion testing revealed increased pain, but no weakness, fatigability or incoordination, or other functional impairment present. As noted above, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5010-5003 and 5257, but any such separate rating must be based upon additional disabling symptoms and in determining whether additional disability exists, the veteran must meet, at minimum, the criteria for a zero percent rating under either of those codes. See VAOPGCPREC 9-98. Accordingly, because the ranges of motion reported for the right and left knees at the time of the VA examination in 2009 did not meet the criteria for a compensable rating under either DC 5260 or DC 5261, separate compensable ratings for the Veteran's service-connected right and left knee disabilities are not warranted. In an effort to afford the Veteran the highest possible disability ratings, the Board has evaluated his knee disabilities under all other appropriate diagnostic codes. However, he has never been diagnosed with or been shown to have ankylosis of either knee, impairment of the tibia and fibula, or genu recurvatum (hyperextended knee). Therefore, DCs 5256, 5262, and 5263 are not for application. DC 5259 is not applicable as it provides a maximum 10 percent rating for symptomatic removal of semilunar cartilage. Under DC 5258, a 20 percent evaluation is warranted where the semilunar cartilage is dislocated with frequent episodes of locking, pain, and effusion into the joint. In this context, the Board notes that while the Veteran has reported episodes of pain, he has not reported locking and, moreover, there has been no objective medical evidence of dislocation in either knee joint. Thus, DC 5258 is not applicable. The Board notes that DeLuca v. Brown, supra, has been considered, but concludes that any functional loss due to pain experienced by the Veteran, is adequately covered by the current 10 percent ratings currently assigned for each knee. Additionally, the Veteran has not identified any functional limitation which would warrant a higher rating under any applicable rating criteria. In fact, even with his complaints of pain and weakness, the clinical record reflects his ability to flex and extend his knee, from 0 to 125 degrees (right knee) and to 110 degrees (left knee), with no loss of range of motion due to repetitive movements in either knee. In addition, in 2009, the examiner noted no additional loss of range of knee motion after repetitive movements, and no evidence of fatigability, weakness, or incoordination in either knee. Thus, the Board notes that the provisions of 38 C.F.R. §§ 4.40, 4.45, and Deluca v. Brown have been considered, but they do not provide a basis for the assignment of higher ratings under these circumstances. The Board is required to consider the effect of pain when making a rating determination, and has done so in this case, but the Rating Schedule does not require a separate rating for pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). In summary, the preponderance of the evidence reflects that the Veteran's service-connected right and left knee disabilities have each been no more than 10 percent disabling at any time during the pertinent appeal period. Hart v. Mansfield, supra. Thus, the benefit-of-the-doubt rule does not apply, and the claims for a rating in excess of 10 percent for post-operative residuals of a right knee medial meniscectomy, and for a rating in excess of 10 percent for residuals of a left knee injury, must both be both denied. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Extraschedular Consideration The Board notes that neither of the Veteran's service-connected knee disabilities considered herein warrant referral for extra-schedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. In the present case, as explained above, the rating criteria for the Veteran's service-connected right and left knee disabilities reasonably describe his disability levels and symptomatology, and provide for a greater evaluation for more severe symptoms for the knees. Moreover, the record reflects that the Veteran has maintained his employment as a police officer, even though he has reported some difficulties with different work-related activities. For these reasons, the Board concludes that the disability picture for each knee is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate for both the right and left knees. Therefore, referral for the assignment of an extraschedular disability rating is not warranted. ORDER A rating in excess of 10 percent for post-operative residuals of a right knee medial meniscectomy is denied. A rating in excess of 10 percent for residuals of a left knee injury is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs