Citation Nr: 1302277 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-43 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for instability of the left knee prior to March 1, 2013. 2. Entitlement to an initial evaluation in excess of 10 percent for osteoarthritis of the left knee. REPRESENTATION Appellant represented by: Edward M. Farmer, Attorney WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1959, to June 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision in which the Regional Office (RO) granted the Veteran service connection with an evaluation of 10 percent for instability of the left knee and service connection with an evaluation of 10 percent for osteoarthritis of the left knee. The Veteran filed a Notice of Disagreement in March 2009. The Veteran was provided with a hearing before a Decision Review Officer on May 2010 and a Statement of the Case (SOC) in September 2009 and Supplemental Statements of the Case (SSOC) on October 2010, and June 2012. In a November 2009 VA Form 9, the Veteran perfected an appeal with regard to the ratings assigned. In regard to the issue of instability in the left knee, the Board notes that the Veteran was given notice on July 2012, of a proposed reduction in his 10 percent evaluation in accordance with 38 C.F.R. §§ 3.105 (e), (i) (2012). In August 2012, the Veteran's prior representative, the American Legion, submitted a response requesting a pre-decisional hearing. However, in August 2012, the Veteran obtained his current representation, who subsequently indicated the Veteran's intent to cancel the hearing request and exercise the traditional appeals process for the proposed reduction. In November 2012, the RO contacted the Veteran's representative and explained that engaging in the traditional appeals process would be premature and the representative indicated intent to move forward without a hearing. In December 2012, the Veteran was notified and provided with a November 2012 rating decision promulgating the proposed reduction of the Veteran's 10 percent evaluation for instability in the left knee to 0 percent, effective March 1, 2013. In light of these procedural circumstances, the Board has characterized this issue for the purpose of the present appeal as entitlement to an initial evaluation in excess of 10 percent for instability of the left knee prior to March 1, 2013. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a total rating based on individual unemployability (TDIU) claim is part of an initial (or increased) rating claim when such claim is raised by the record. As of this writing, this issue has not been raised by the record and will not be addressed in this decision. The issue of a request to reopen a previously denied claim of service connection for a back condition as secondary to the service connected left knee disabilities has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, this issue is not a part of the current appeal and is referred to the AOJ for appropriate action. A review of the Virtual VA paperless claims processing system reveals VA outpatient treatment records from April 2009 to May 2012. FINDINGS OF FACT 1. The evidence of record does not reveal that the Veteran had moderate or severe recurrent subluxation or lateral instability in his left knee at any time pertinent to the appeal. 2. Degenerative changes of the left knee joint shown on x-ray are demonstrated by the evidence of record. 3. The evidence of record does not reveal that the Veteran had a limitation of left leg flexion of 30 degrees or less or an extension of 10 degrees or more, even when considering functional impairment on use, at any time pertinent to the appeal. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent prior to March 31, 2013 for instability of the left knee are not met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.102, 3.159, 4.45, 4.59, 4.71a, Diagnostic Codes 5257 (2012). 2. The criteria for a disability rating in excess of 10 percent for osteoarthritis of the left knee are not met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.102, 3.159, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Under 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 369 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). But "[i]n cases where 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/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, section 5103(a) notice is no longer required). Additionally, where service connection has been granted, the claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates or disability ratings. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran has made no such assertions here. Accordingly, regarding the initial evaluations for instability of the left knee and osteoarthritis of the left knee, VA's duty to notify has been satisfied. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records, VA medical records, and identified private medical records have been obtained. VA provided the Veteran adequate medical examinations in January 2009, July 2010, and June 2012. The examinations are adequate because each contains a history obtained from the Veteran and thorough examination, to include range of motion testing in accordance with the requirements set out in DeLuca v. Brown, 8 Vet. App. 202 (1995), relevant to the applicable rating criteria. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, only the specific factors as enumerated in the applicable rating criteria may be considered. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes, however, that where, as here, the current appeal is based on the assignment of an initial rating for a disability following an initial award of service connection, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence 'used to decide whether an original rating on appeal was erroneous.' Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, 'staged' ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126. When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). In rating a musculoskeletal disability, functional loss due to pain is a factor. Other factors include less movement than normal, weakened movement, excess fatigability, pain on movement, and painful motion. 38 C.F.R. § 4.40 , 4.45, and 4.59; see also DeLuca, 8 Vet. App. 202. The knee can be rated under Diagnostic Codes 5256-5263. 38 C.F.R. § 4.71a. Assigning multiple ratings for the Veteran's left knee disability based on the same symptoms or manifestations would constitute prohibited pyramiding. 38 C.F.R. § 4.14. However, as has been done in this case, lateral instability and degenerative arthritis of the knee may be rated separately under DCs 5257 and 5003. VAOPGCPREC 23-97 (1997); but see 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided). The Board has also considered whether separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. See VAOPGCPREC 9-2004, 69 Fed. Reg. 59990 (2004). Analysis The Veteran contends that the severity of both his left knee instability and left knee osteoarthritis is greater than reflected in the 10 percent evaluations granted for both of these conditions. In his March 2009 Notice of Disagreement, the Veteran stated that he believed that his condition was worse because he had to use a cane and take narcotics to treat the pain. In his November 2009 VA Form 9, the Veteran further stated that doctors have advised him on knee replacement, he has trouble negotiating stairs, he cannot stand for more than five to ten minutes without having to sit down due to back pain, he cannot walk on uneven ground without great pain, and that it takes weeks for pain and swelling to subside. These complaints were also presented at the May 2010 RO hearing in addition to testimony from the Veteran's spouse that she has to assist with daily activities due to difficulty navigating in the home. In a January 2011 statement, the Veteran indicated that his condition was continuing to worsen and that he had to be administered cortisone injections to alleviate the pain. He stated that the pain is present whenever he sits, stands, or lies down and that he experiences interference with his sleep. A review of the Veteran's service treatment records revealed an internal left knee derangement was conducted on the Veteran at a Navy Hospital. Records indicated that the Veteran had a full range of motion without pain or instability. A review of the Veterans' VA outpatient treatment records shows that he sought treatment for complaints of pain in his left knee. The Veteran consulted on several occasions regarding knee replacement surgery. No range of motion testing was provided and no objective evidence of instability or subluxation was noted. Private treatment records showed treatment for the Veteran's complaints of left knee pain and popping. However, testing revealed no instability. No range of motion testing was provided. The Veteran was administered a VA examination in January 2009. At this examination, the examiner noted subjective complaints of pain, swelling, instability, and giving way. The Veteran reported a history of one flare-up incident in which he could not walk for about a week with severe pain. It was noted that the Veteran used a cane to ambulate. The Veteran also indicated that his knee made a grinding noise when standing or walking. The examiner performed range of motion testing and found that the Veteran's left leg flexion was limited to 110 degrees and extension was limited at 5 degrees. No pain was noted with motion, although there was noted fatigue, weakness, lack of endurance, and incoordination. No additional pain or loss of motion was noted after three repetitions. Instability was noted in the left knee. The Veteran was diagnosed with osteoarthritic changes of the left knee. The Veteran was administered an additional VA examination in July 2010. At this examination, the Veteran stated that his condition had been getting progressively worse. He claimed deformity, giving way, instability, pain, incoordination, decreased speed of joint motion, grinding sounds, and weakness. The Veteran also reported locking episodes, effusions, swelling, tenderness, and severe weekly flare-ups lasting one to two days. The Veteran used a cane to ambulate and was unable to stand for more than a few minutes or walk more than a few yards. The examiner performed range of motion testing and found that the Veteran's left leg flexion was limited to 90 degrees and extension was normal at 0 degrees. No pain or additional loss of motion was noted after three repetitions. There was no finding of instability. The Veteran was diagnosed with mild appearing degenerative changes. This condition was noted as having severe effects on chores and shopping and preventing exercise and sports, with mild effects on recreation. The occupational effects included decreased mobility and pain which resulted in being assigned different duties. The Veteran was administered an additional VA examination in June 2012. At this examination, the Veteran stated that his condition had been getting progressively worse. He claimed that his knee will sometimes blow out and put him down for a couple of weeks. The examiner performed range of motion testing and found that the Veteran's left leg flexion was limited to 80 degrees and extension was normal at 0 degrees. Pain was noted at 60 degrees. After three repetitions, the Veteran's flexion was limited to 70 degrees. Additionally, the examiner observed evidence of less movement than normal, weakened movement, excess fatigability, painful on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. Stability was tested and revealed to be normal. The Veteran was diagnosed with osteoarthritis of the left knee. This condition was found to have effects on the Veteran's daily activities by limiting his ambulation. Instability of the left knee The Board finds that the evidence of record does not support entitlement to an evaluation in excess of 10 percent prior to March 1, 2013. Under DC 5257, the diagnostic code under which the Veteran's left knee instability is currently rated, recurrent subluxation or lateral instability may be rated at 10 percent, 20 percent, or 30 percent, depending on whether it is slight, moderate, or severe. 38 C.F.R. § 4.71a. The January 2009 VA examination report noted that the Veteran's medial and lateral collateral ligaments are mild on the left side and anterior and posterior drawer signs are stable. Based upon objective observation, the examiner noted instability. Although, the Veteran continued to report instability in his left knee in the July 2010 and June 2012 VA examinations, objective observations by both examiners revealed no evidence of instability. It is clear that the Veteran was originally given a diagnosis of mild instability of his left knee per his 2009 VA examination, however the subsequent VA examination reports and other medical evidence of record clearly show that the Veteran objectively has no evidence of continued instability. There is no medical evidence of record indicating that the Veteran's left knee instability is more than mild in severity. Therefore, under DC 5257 the Veteran's left knee instability does not warrant a rating in excess of 10 percent. See Id. Osteoarthritis of the left knee Diagnostic Code 5003 provides that when the limitation of motion of the specific joint involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion that is affected by degenerative arthritis when limitation of motion is objectively confirmed by findings such as painful motion. See 38 C.F.R. § 4.71a, DC 5003. In the February 2009 rating decision, the RO granted the Veteran a 10 percent rating for limitation of flexion due to painful motion based on DC 5003. Under DC 5260 and 5261, the diagnostic codes under which the Veteran's left knee limitation of flexion and extension would be evaluated to ascertain an increased rating, when the leg has flexion limited to 30 degrees, a 20 percent rating is warranted and when the leg has an extension limited to 15 degrees, a 20 percent rating is warranted as well. Id. Plate II reflects that normal flexion and extension of a knee is from zero degrees of extension to 140 degrees of flexion. Id. The January 2009 VA examination report reflect that the Veteran's left knee lacked at most 5 degrees of extension and had flexion limited to 100 degrees. The July 2010 VA examination report notes that the Veteran's left knee had normal extension and had flexion limited to 90 degrees. The July 2012 VA examination report notes that the Veteran's left knee had flexion of 80 degrees with a limitation to 70 degrees after three repetitions and extension to 0 degrees. Although it appears that the Veteran's flexion is progressively becoming more limited over the years, it is still not to the severity of 30 degrees or less contemplated by the Schedule. On the other hand, the Veteran's limitation on extension actually appears to have improved, showing normal range of motion findings since July 2010. The medical evidence of record clearly indicates that the Veteran's left knee does not have flexion limited to 30 degrees, and therefore his left knee osteoarthritis does not warrant a higher 20 percent evaluation. 38 C.F.R. § 4.71a. Also, the medical evidence of record clearly indicates that the Veteran's left knee does not have extension limited to 15 degrees, and therefore his left knee limitation of extension does not warrant a compensable rating under DC 5261 or an even higher 20 percent evaluation. Id. Accordingly, the Veteran is competent to provide evidence about observable symptoms such as knee pain or grinding, as well as the frequency and duration of such symptoms during flare-ups. See Layno v. Brown, 6 Vet. App. 465 (1994). Similarly, his wife is competent to report the knee problems the Veteran suffers and the need for assistance that she observes. The VA examiners did indicate that the effect on his occupation was decreased mobility and pain on use of the left knee, and that the effect on his daily activities of living was a limited ability to ambulate. These comments by the examiners would tend to support the Veteran's complaints of pain, a lack of endurance and fatigability, which would account for the functional impairment on repetitive use of the left knee. In considering this lay and medical evidence, within the context of this appeal, the Board finds that the current 10 percent rating for the Veteran's left knee osteoarthritis appears to be based upon functional loss due to pain on use of the left knee joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). As such, the pain experienced on motion and use of the left knee has been considered in assigning the 10 percent evaluation and there is no additional documented range of motion loss that would warrant a higher rating due to pain. Furthermore, while the range of motion findings discussed above would result in noncompensable evaluations under the limitation of motion codes (i.e. Diagnostic Codes 5260 and 5261), motion of the knee is nevertheless limited, and there was evidence of degenerative disease on X-ray. As such, a 10 percent evaluation is appropriate for the left knee osteoarthritis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2001). The Board notes that the Veteran has claimed, in an August 2012 statement and an August 2012 statement from his representative, that a goniometer was not used by any of his VA examiners as required by 38 C.F.R. § 4.46. However, the Board finds that, irrespective of the use of the goniometer, the VA examinations conducted on January 2009, July 2010, and June 2012, were adequate for rating purposes. The examination reports do reflect range of motion findings. Further, the reports show that the examiners solicited symptoms from the Veteran, personally examined the Veteran, and provided diagnoses consistent with the record. The objective physical findings that are detailed in these examination reports were obtained based on physical examinations of the Veteran by medical doctors or medical professionals; and as such, they represent the actual evaluation results of the Veteran's participation in a clinical study. Hence, the Board finds that the January 2009, July 2010, and June 2012 VA examination reports may be accepted as adequate to determine the current disabling factors of the Veteran's left knee conditions without further examination. 38 C.F.R. § 3.326 (2012). Finally, at no time during the pendency of his increased rating claim has the Veteran's left knee been diagnosed with, nor is there any medical evidence of record indicating, ankylosis, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. Therefore, DCs 5256, 5257, 5258, 5259, 5262, and 5263 are not for application. Id. The preponderance of the evidence is against the claims; there is no doubt to be resolved; and higher initial ratings for left knee instability and osteoarthritis are not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Other Considerations Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of 'an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1); Barringer, 22 Vet. App. at 243-44. In this regard, the schedular evaluations in this case are not inadequate. Ratings are provided for knee impairments that are more severe than the Veteran's current instability and osteoarthritis. Additionally, the diagnostic criteria adequately assess the severity and symptomatology of the Veteran's disability, as the criteria assess pain and functional capacity with regard to occupation and activities of daily living. The Veteran has asserted that his knee disability causes constant and increasing pain as well as prevents him from engaging in daily activities without assistance or burden. The Board is sympathetic to these competent and credible statements, but notes that these difficulties are already contemplated by the rating schedule and that the Veteran is still able to generally function with respect to most tasks of daily living as indicated on his VA examinations. Also, there is no indication of frequent hospitalizations related to the Veteran's condition. Consideration of an extraschedular rating is thus not warranted. The evidence of record does not warrant ratings in excess of those assigned for the Veteran's knee disability at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); see also Fenderson, 12 Vet. App. at 126. ORDER Entitlement to an initial evaluation in excess of 10 percent for instability of the left knee prior to March 1, 2013, is denied. Entitlement to an initial evaluation in excess of 10 percent for osteoarthritis of the left knee is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs