Citation Nr: 1325724 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 08-32 563 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE 1. Entitlement to an evaluation in excess of 10 percent for the service-connected left knee osteoarthritis. 2. Entitlement to a separate evaluation for the service-connected left knee disability on the basis of instability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from May 1989 to May 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the RO. During the course of his appeal, the Veteran was afforded a hearing at the RO before the undersigned Veterans Law Judge in January 2011. A transcript of the hearing is associated with the claims file. A review of the Veteran's virtual claims folders reveals that they contain no pertinent evidence that is not also contained in the paper claims file. The Board remanded the case for additional development of the record in February 2011. As will be explained, as the remand directives have been reasonably addressed, the case is ready for appellate review. FINDINGS OF FACT 1. The service-connected left knee disability is shown to be manifested by x-ray evidence of arthritis and painful motion, but flexion is performed to more than 30 degrees. 2. The service-connected left knee disability picture is shown to be manifested by impairment that more nearly approximates that of slight instability. CONCLUSIONS OF LAW 1. The criteria for the assignment of an evaluation in excess of 10 percent for the service-connected left knee disability on the basis of osteoarthritis with limitation of motion are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a including Diagnostic Codes 5010, 5260 (2012). 2. The criteria for the assignment of an evaluation of 10 percent, but not higher for the service-connected left knee instability on the basis of instability are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a including Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable law, 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran was provided such notice in a March 2007 letter, prior to the initial adjudication of his claim in June 2007. That letter also contained notice regarding disability ratings and effective dates, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the Veteran was not provided with the rating criteria used to assess his disability in a letter, they were provided in the October 2008. As such, the Veteran had actual knowledge of this information, and his claim was thereafter readjudicated on a number of occasions, most recently in February 2012, curing any timing defect. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (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 in an SOC or SSOC, is sufficient to cure a timing defect). For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of relevant records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. All identified and available post-service treatment records have been obtained. While the Veteran reported that he was in receipt of benefits from the Social Security Administration, the RO requested these records and was informed in September 2008 that such records did not exist. As such, any further efforts to obtain them would be futile, and VA has satisfied its duty to assist in this regard. The Veteran has been afforded VA examinations regarding his claim in April 2007, February 2009, and May 2011. As they contained a full evaluation of the Veteran's disabilities at issue, they are adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board does not have notice of any additional relevant evidence which is available but has not been obtained. The Board is further satisfied that the RO has substantially complied with its February 2011 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Specifically, the RO obtained the Veteran's VA treatment records dated since September 2010. In addition, the Veteran was afforded a VA examination in May 2011 that addressed the matters raised in the Board's remand. While no x-rays were taken during this examination, there are several reports of such studies noted in the claims file throughout the Veteran's treatment. As the diagnosis attributed to the Veteran's left knee disability has already been established, additional x-rays taken in conjunction with the VA examination were not necessary, and the RO has substantially complied with the Board's remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the hearing in January 2011, the Veteran's representative spent a considerable amount of time identifying the relevant evidence and interviewing the Veteran regarding his current symptomatology. Towards the end of the hearing, the undersigned spent time clarifying whether any additional relevant evidence was available that could be capable of substantiating these claims. As such, the Board finds that it has fully complied with the Bryant requirements. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). In this case, the disability has not significantly changed and a uniform evaluation is warranted. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, as the disability on appeal is, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The 10 percent rating now assigned to the left knee contemplates periarticular pathology productive of painful motion. 38 C.F.R. § 4.59 (2012). It is also consistent with flexion of the leg limited to 45 degrees. In order to warrant a higher evaluation, the evidence must approximate the functional equivalent of flexion of the leg limited to 30 degrees or less. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. Since some limitation of motion is noted, and the Veteran is already in receipt of a 10 percent rating based on limitation of motion, these criteria are not applicable in granting the Veteran a higher evaluation. Diagnostic Code 5010 directs that traumatic arthritis is to be rated as degenerative arthritis. Flexion of the leg is rated noncompensable when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. Other diagnostic codes provide rating criteria used to evaluate ankylosis, recurrent subluxation or lateral instability, dislocated cartilage, limitation of extension, impairment of the tibia and fibula, and genu recurvatum. A March 2007 VA outpatient record shows that there was full extension and flexion with active and passive motion. There was no laxity or locking. In April 2007, the Veteran underwent VA examination. He did not use an assistive device for walking. The Veteran reported giving way and instability of his left knee, along with pain and stiffness. There was no weakness and no episodes of dislocation or subluxation. On examination, the Veteran's gait was noted to be normal. His range of motion was from 0 to 120 degrees with no additional limitation after repetition. McMurray's and Lachman's tests were negative. There was no instability to varus and valgus testing. There was no ankylosis. The knee had mild effects on some of his daily activities. During March 2008 VA outpatient treatment, the Veteran reported that his left knee pain was affecting his work. He had a knee sleeve, but it was not working. A December 2008 VA treatment record shows that the Veteran reported that his left knee usually did not give out. A January 2009 VA outpatient record showed flexion to 90 degrees, where there is pain. Lachman's test was positive. The collateral ligaments were stable. In February 2009, the Veteran underwent VA examination. He complained of giving way and weakness, but denied instability. There was no dislocation or subluxation. On examination, his gait was antalgic. On testing, there was no instability. His range of motion was that of flexion from 0 to 60 degrees. There was objective evidence of pain on motion. There was no additional limitation after three repetitions. There was no ankylosis. The Veteran was employed full time as a truck driver. The knee had a significant effect on his employment, resulting in decreased mobility, problems with lifting and carrying, decreased strength and lower extremity pain. There were mild, moderate, and severe effects on all of his daily activities. In January 2011, the Veteran testified before the undersigned that he had trouble with getting in and out of his truck due to his knee. He missed time at work, consisting of approximately three days in the past year due to his knee. His doctor had noted his instability and called it severe. A January 2011 VA outpatient treatment record showed that varus testing was positive. In May 2011, the Veteran underwent VA examination. He complained of giving way and pain, but denied instability. There were no episodes of dislocation or subluxation. He used a brace at all times. The Veteran had a gait with poor propulsion. On examination, there was guarding of movement, but no instability. His range of motion was from 0 to 80 degree with objective evidence of pain on motion. There was no additional limitation of motion after repetitions. There was no ankylosis. The diagnosis was that of left knee degenerative joint disease, severe. The weakness, fatigue, decreased strength and pain of the left knee affected his occupation. As a result, he had been assigned different duties. It had a mild to severe effect on his daily activities and prevented some. It had a moderate impact on his employability, since he was a truck driver and needed to shift with his left leg. At issue here is whether a disability rating in excess of 10 percent is warranted for the service-connected left knee disability at any point during the appeal period. The current evaluation is consistent with arthritis manifested by painful motion. 38 C.F.R. § 4.59. It is also consistent with limitation of flexion to 45 degrees. In order to warrant a higher rating, there must be actual or the functional equivalent of limitation of flexion to 30 degrees. See DeLuca, supra; 38 C.F.R. § 4.7. Separate evaluations may be assigned for compensable limitation of extension, subluxation, or instability. The Board notes that the Veteran is in receipt of a 10 percent rating under Diagnostic Code 5259 for left knee ligament and meniscus surgery. The Veteran specifically did not appeal this rating following the June 2007 rating decision, and this rating is not before the Board for adjudication. Under the criteria of Diagnostic Code 5260, the Veteran is not shown to have demonstrated an actual loss or its functional equivalent manifested by flexion limited to 30 degrees. Throughout the appeal period, he maintained flexion to at least 60 degrees. While the Veteran complained of pain and other symptoms, they did not affect his functional ability to flex his knee to less than 45 degrees. All VA examination reports revealed that, following repetitious movement, the Veteran maintained flexion more than 45 degrees of the left knee. The Veteran has not asserted, and there is no other evidence to suggest, that the Veteran was ever functionally limited to 30 degrees or less of flexion in the left knee. As such, a rating in excess of 10 percent under Diagnostic Code 5260 is not warranted. Furthermore, there is no evidence of ankylosis, impairment of the cartilage, limitation of extension, impairment of the tibia and fibula, or genu recurvatum. With regard to other impairment of either knee, the Veteran reported the presence of instability during his April 2007 VA examination and his recent hearing, but denied having any in February 2009 and May 2011. All stability testing during the VA examinations has been normal. There are two VA treatment records showing positive findings on Lachman's and varus testing. The Veteran has also reported giving way of his knee. On this basis, the Board finds that the service-connected disability picture more closely resembles the criteria for a separate 10 percent rating on the basis of left knee instability under the criteria of Diagnostic Code 5257. While the VA examinations consistently indicated that there was no instability, the reports do not contain the result of specific testing used for determining if instability is present. To the extent that the Veteran is shown to have undergone surgery for reconstruction of a ligament, the Board finds that, given the Veteran's reports of giving way symptoms and the two positive tests results in VA treatment records, slight instability of the left knee is shown by the record. However, under Diagnostic Code 5257, a higher rating is not warranted for moderate or severe instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As noted, only two tests ever conducted on the Veteran were positive, and he denied experiencing instability when examined in February 2009 and May 2011. While he reported instability in April 2007 and has described giving way and wearing a brace to feel more secure about his knee, the Board finds that this symptomatology, without more evidence on examination, corresponds to or equate with more than slight instability. The Veteran has reported his symptomatology, and he is certainly competent to do so. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also finds the Veteran's reports to be credible and has considered them in evaluating his claim. Therefore, taking into account both the lay and medical evidence, the Board finds that a rating in excess of 10 percent is not warranted under Diagnostic Code 5260 and that a separate 10 percent rating is assignable under Diagnostic Code 5257. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion reflects that the symptomatology associated with the Veteran's disabilities is fully contemplated by the applicable rating criteria. The symptomatology reported by the Veteran and shown on examination is contemplated by the rating criteria used to assign disability evaluations, and there is no characteristic or manifestations shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria in applicable. All potentially relevant rating codes have been considered and evaluated. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required. Therefore, referral for consideration of an extraschedular rating for any of the disabilities on appeal is not warranted. 38 C.F.R. § 3.321(b)(1). As such, given a review of all of the evidence of record, the Board concludes that the Veteran's left knee instability warrants a separate 10 percent disability rating. Otherwise, the evidence preponderates against the Veteran's claim for increase, and it is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An evaluation in excess of 10 percent for the service-connected left knee disability on the basis of osteoarthritis with limitation of motion is denied. A separate 10 percent rating for the service-connected left knee disability on the basis of instability is granted, subject to the regulations governing the payment of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs