Citation Nr: 1315564 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 07-17 268A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a separate compensable disability rating for right knee instability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran had active service from April 1971 to April 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This case was previously before the Board in April 2011, at which time the Board granted entitlement to an increased disability rating of 60 percent for right knee arthritis, status post total knee arthroplasty (TKA). The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2012, the Court granted a joint motion of the parties and remanded the issue noted on the first page of this decision only for additional action consistent with the joint motion. In September 2012, the Board remanded this claim for additional development. As discussed below, the Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) has been raised. The RO has been advised of the issue by referral from the Board in its September 2012 remand and the RO is currently developing the claim. The issues of entitlement to secondary service connection for a low back disorder and entitlement to secondary service connection for hypertension have been raised by the record. (See March 2013 brief from the representative). These claims have not been addressed by the RO and thus the Board lacks jurisdiction over them. They are referred to the RO for the appropriate action. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDING OF FACT The Veteran's right knee disability has not been manifested by lateral instability or recurrent subluxation at any time during the period of this claim. CONCLUSION OF LAW The criteria for a separate compensable disability rating for right knee instability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.31, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided with notice in June 2006 and again in November 2006 prior to the initial adjudication of this claim. The letters advised him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. Both letters also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) and service personnel records (SPRs) are on file. VA Medical Center treatment records have been obtained. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. In addition, the Veteran was afforded appropriate VA examinations. The examination reports and the other evidence of record contain the findings needed to make a determination regarding this claim. Furthermore, in obtaining the most recent VA examination in May 2012, there was compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). See also Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008) and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Further, there is no contention or objective evidence that there has been a material change in the appellant's service-connected right knee disorder since he was last examined regarding instability of the knee. The examination reports in this case are adequate for rating purposes. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent disability evaluation. A 20 percent evaluation requires moderate impairment. A 30 percent evaluation requires severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A review of the file shows that in March 2005, the Veteran underwent a total knee arthroplasty (TKA) of his right knee due to service-connected arthritis. In June 2006, the Veteran filed a claim for an increased disability rating, reporting that his right knee was not stable, was painful, and was very weak. Here, as noted above, the claim was remanded to the Board by the Court to address the issue of entitlement to a separate compensable rating for the Veteran's right knee disorder, based on instability. A review of the VA Medical Center treatment notes of record shows that the Veteran receives routine care at the VA Medical Center for right knee pain. In February 2006, the Veteran underwent an examination of his right knee. At that time, the Veteran reported that he experienced off and on right knee pain that was exacerbated by prolonged sitting or standing and walking long distances. He reported that the pain was relieved by rest. The Veteran reported that the pain was located over the patella and that it would radiate into his leg. Physical examination of the knee revealed laxity in the lateral collateral ligament (LCL). The examiner diagnosed right TKA with infrapatellar DJD as well as laxity in the LCL. The examiner recommended quadriceps and hamstring strengthening for some relief. In July 2006, the Veteran was afforded a VA examination of his right knee. The knee was noted to be stable with negative anterior, posterior, varus, valgus, and Lachman's stressing. The right knee was also negative for McMurray's and ballottement. A January 2008 VA orthopedic clinic note shows no effusion or instability of the right knee. In February 2008, the Veteran was examined by VA and he reported right knee pain. He reported that the knee felt unstable. Examination showed the knee to be stable to the Lachman test, drawer testing and varus/valgus stress testing. The Veteran was examined by VA in May 2012. On joint stability tests, Lachmans was normal, drawer was normal and valgus/ varus was normal. It was noted that there was no evidence or history of recurrent patellar subluxation /dislocation. In an October 2012 addendum, the examiner stated that the right knee evaluation in May 2012 did not reveal any instability in the joint including a negative Lachmans, anterior/posterior drawer sign and negative medial/lateral translation upon applying medial/lateral stress. In November 2012, another addendum was offered. The examiner stated that he had reviewed the claims file and that there were no findings of medial/lateral and anterior/posterior instability of the Veteran's right knee. Another addendum in December 2012 is in the file and it was reiterated that there was no instability found in May 2012. The examiner stated that the latest disability evaluation does not support any objective evidence of instability. As noted above, VA outpatient records dated into August 2012 show no collateral laxity. A review of the documents in the electronic file has been conducted and none of those records shows that the Veteran has instability of the right knee. While he has complained of right knee weakness, buckling and giving way (See VA outpatient treatment records dated in June, July and August 2012, for example), VA examinations have consistently disclosed no instability or recurrent subluxation of the knee. As discussed above, the objective evidence shows that some right knee laxity has been found but all examinations have been negative for the presence of lateral instability or recurrent subluxation. Moreover, the May 2012 VA examiner reviewed the record and determined that it did not support the presence of lateral instability or recurrent subluxation of the right knee. While the Board acknowledges that the Veteran is competent to report that his right knee buckles and gives way, his statements are self serving and therefore are not, in the Board's opinion, as probative as the medical evidence prepared by objective professionals showing that he does not have lateral instability or recurrent subluxation of the right knee. Therefore, the Board must conclude that a separate compensable rating for instability of the right knee is not in order. In reaching this decision the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER A separate compensable disability rating for right knee instability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs