Citation Nr: 1327460 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 08-34 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating in excess of 10 percent for a degenerative joint disease of the left knee, prior to January 15, 2013. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from January 1973 to June 1973 and from January 2003 to September 2003. He also had service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) which assigned a temporary total rating of 100 percent, for degenerative joint disease of the left knee, effective April 23, 2007, based on surgical or other treatment necessitating convalescence, and assigned a 10 percent rating, effective July 1, 2007. In December 2009, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge and a transcript of that hearing is of record. In January 2010, the Board remanded this matter for further development, to specifically include obtaining the Veteran's Social Security Administration records, obtaining VA treatment records, and obtaining a VA examination and opinion for the Veteran. It appears that there was not substantial compliance with the portion of the Board's January 2010 remand regarding the VA examination, as the Veteran failed to report for the scheduled VA examinations. Therefore, another remand was warranted. Stegall v. West, 11 Vet. App. 268 (1998). In January 2013, the Board remanded this matter to schedule the Veteran for a VA examination . A review of the record shows that the Veteran underwent a VA examination in February 2013; thus there has been substantial compliance with Board's January 2013 remand. Stegall v. West, 11 Vet. App. 268 (1998). A March 2013 rating decision assigned a temporary total 100 percent rating for a total left knee replacement, effective January 15, 2013, followed by a 30 percent rating for degenerative joint disease of the left knee with total knee replacement, effective March 1, 2014. Therefore, the Board will consider on this appeal only whether a higher rating was warranted prior to January 15, 2013, because a 100 percent rating is currently in effect. With regard to the 30 percent rating, assigned effective from March 1, 2014, the Board does not have the jurisdiction to review a prospective rating following expiration of the temporary 100 percent rating. FINDING OF FACT Prior to January 15, 2013, the Veteran's service-connected degenerative joint disease of the left knee was manifested by no more than chronic pain, occasional swelling and crepitus, and range of motion limited to 0 degrees of extension and 100 to 125 degrees of flexion, with no clinical manifestation of instability. CONCLUSION OF LAW Prior to January 15, 2013, the criteria for a rating in excess of 10 percent for degenerative joint disease of the left knee were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); 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) (2012). The notice should 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 notice requirements apply to all five elements of a service connection claim, including (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 (2006). If complete notice is not provided until after the initial adjudication, any timing error can be cured by subsequent legally adequate notice, followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case. 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 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In a claim for increase, the notice requirement is for generic notice of the type of evidence needed to substantiate the claim, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, and 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 duty to notify was satisfied by letters sent to the Veteran in August 2006 and June 2008 that fully addressed the notice elements . The letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Both letters advised the Veteran of how disability ratings and effective dates are assigned. Moreover, the Veteran has not demonstrated any error in notice. Therefore, 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 claim. The RO has obtained all identified and available service and post-service medical records. His representative indicated, in the July 2103 informal hearing presentation, that treatment records from Mountain Home VAMC were listed in the most recent supplemental statement of the case, but were not contained in the claims folder. However, review of the record shows that those records have been associated with the Veteran's Virtual VA electronic claims file and have been reviewed by the Board. The Veteran also underwent a VA examination in February 2013 that included a review of the claims folder and a history obtained from him, and examination findings were reported, along with diagnoses/opinions, which were supported in the record. That VA examination report is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran also appeared at a hearing before the Board and a transcript of that hearing is of record. It appears that all obtainable evidence identified by the Veteran relative to his claim 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 claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim. No useful purpose would be served in remanding this matter for further development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994). VA treatment records showed that in April 2007, the Veteran underwent arthroscopic surgery of the left knee. Thereafter, in May 2007, he was seen one week after surgery to start outpatient physical therapy. Objective examination revealed that his left knee hurt at night and with passive extension, and had a range of motion from 0 to 100 degrees. In August 2007, he complained of left knee pain and was seen for physical therapy for left knee patella tendonitis. His left patella tendon was found to be tender to palpation, he ambulated with a cane, and he had range of motion form 0 to 120 degrees with slight crepitus. The knee was stable to varus and valgus testing. In June 2008, he complained of chronic knee pain. In July 2008, he was seen for unrelated complaints, and on objective examination he was noted to have mild crepitus of the joints, no tenderness, and no edema. On a private examination, performed for Tennessee Disability Determination Services in June 2008, the Veteran reported he had left knee arthroscopic surgery in February 2007, but his pain had not decreased since then. Objective examination revealed that his knees were normal to inspection and palpation, without any tenderness or effusion. He had slight crepitus of the left knee, and normal range of motion to flexion and extension in both knees. The diagnoses included chronic left knee pain, history of left knee medial meniscus tear, history of left knee lateral meniscus tear, and left chondromalacia inferior patella. VA treatment records show that in August 2008, the Veteran was seen for unrelated complaints, and objective examination revealed normal range of motion of his extremities. In April 2010, he complained of ongoing knee pain, left greater than right. A physical examination of the knees revealed bilateral knee crepitus, no anterior drawer sign, no effusion or erythema, no popliteal tenderness, and range of motion appeared to be normal. In May 2010, the provisional diagnosis for the knees was degenerative arthritis, possible internal derangement. It was noted that the Veteran had bilateral knee pain for approximately seven years, and that his pain was at level 8. He denied locking and catching since the arthroscopy in 2007. He reported giving away of the knees, and that his knees were aggravated by walking and standing. He had pain every day, without much improvement. Objective examination of the knees showed no deformity, edema, effusion, atrophy, instability, or crepitus, and that active range of motion was full. In July 2010, he was asked about his left knee pain after his last pain injection, and he stated that the pain had continued at level 8 on a scale of 1 to 10, and that nothing helped the pain. He reported that since the injection, he had more movement in the knee and could get around better. In September 2010, he reported his knee hurt and gave out on him, and he used a cane for support. He had a series of five knee injections, which helped for a while, but his knee was starting to feel worse again and he felt it grinding between the bones. Received from the Veteran in August 2010 was a statement in which he reported that "since the operation in 2007 [his] left knee stopped locking up and felt a little better for a short time" but that "now it fails [him]". He reported that every now and then his knee gave out and he fell to his hands and knees. He reported he could not bend his knee half as much as previously, without it hurting. He reported he used a cane most of the time if he had to walk far. He claimed his left knee hurt all the time, and made a grinding noise, like bone to bone. He claimed that the injections helped a little, but not much, and that he depended more on his right side. He had trouble getting out of the driver side of a car, and reported that when he reached out with his left foot and put his weight on it, there was sharp pain under the kneecap, and he felt as if his kneecap would explode. On a VA examination September 2010, it was noted that the Veteran was retired and not currently employed. He retired in July 2006 and received Social Security. The cause of his retirement was listed as "medical (physical problem)", and the specific medical causes were listed as lumbar spine, left knee, and feet. VA treatment records showed that in September 2010, the Veteran underwent a surgical consultation and complained that his left knee hurt all the time, that it seemed like it was bone to bone, and that it felt like he may have a floater. He also reported that when he put weight on the left knee, it felt like it would give under him from sharp pain. An x-ray showed tricompartmental arthritis of the left knee. A recent MRI was reported to show that the lateral meniscus had diminished and was partially extruded out, the ACL was torn, there was a probable small cruciate ligament ganglion cyst associated with the torn ACL, there were moderate degenerative changes seen including chondromalacia and subchondral bone marrow changes, there was a prominent bone bruising involving the lateral patellar facet which could be degenerative/posttraumatic, there was a small joint effusion, there was a small Baker cyst seen posterior, and there was a small amount of fluid seen in the superior tibiofibular joint and subpopliteal bursa with some loose bodies. Examination of the left knee showed that the knee was sensitive to full range of motion, but that it could be achieved. There was minimal crepitus, and the left knee was stable with no ligament laxity. There was no effusion compared to the right knee, the left knee patella tracked normally and was stable to displacement. McMurray's, Lachman's, and Drawer tests were negative. The diagnosis was internal derangement left knee, and the physician indicated that a look at the MRI showed there was at least an insufficient ACL, issues with the lateral meniscus, and the medial showed only a post op partial excision, but the left knee was stable clinically. The physician indicated that there was enough degenerative joint disease, that it might help to consider rearthroscopy , noting that the Veteran did not improve on Hyalgan or steroid injections, but that his left knee hardly looked bad enough at his age to consider a total knee replacement (TKR). VA treatment records show that in October 2010, the Veteran reported that due to his left knee pain, he shifted most of his weight to his right side. In February 2011, it was noted that he had progressive knee pain since initially benefiting from his left knee scope in 2007. He had pain in the anterior and lateral part of the left knee. Examination showed no effusion. Range of motion was from 0 to 110 degrees, and the left knee was stable. X-rays and an MRI showed significant lateral compartment and patellofemoral degenerative joint disease. He underwent the recommended cortisone injection in the left knee, and was referred to consider a total knee arthroplasty. In April 2011, he complained of left knee pain, and indicated that "ortho wants to do TKR on left knee", but he was "not too crazy about the idea". He stated that his left knee was not that bad and that if he could just get three pain pills a day, he could stand it a good while longer. Examination showed left knee pain and swelling, and that he had a normal gait. The assessment was severe left knee osteoarthritis, and his prescription of Hydrocodone was increased to three per day. In September 2012, he underwent a pain evaluation, and he reported having aching pain in his left knee, at a level of 8 on a scale of 1-10. He reported that the left knee pain was constant and interfered with sleep and physical activity. In December 2012, he ambulated with a cane, and his left knee range of motion was from 0 degrees of flexion to 125 degrees of extension, "with overpressure". On January 8, 2013, the Veteran reported chronic left knee pain that was aching and at level 8 on the pain scale. He reported that pain medication helped, but his left knee pain interrupted his daily activities, including lifting, sitting, standing, and walking. Thereafter, on January 15, 2013, he underwent a left total knee replacement. Disability ratings 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 (West 2002); 38 C.F.R. Part 4 (2012). 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 (2012). 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 (2012). Where there is a question as to which of two disability ratings shall be applied, the higher rating 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 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Prior to January 15, 2013, the Veteran's service-connected degenerative joint disease of the left knee was assigned a 10 percent disability rating under Diagnostic Code 5010, which provides that traumatic arthritis is rated as for degenerative arthritis, and under Diagnostic Code 5260, for limitation of flexion of the knee. 38 C.F.R. § 4.71a (2012). Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each 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. Ratings based on limitation of motion of a joint cannot be combined with a rating for arthritis of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Diagnostic Code 5260 provides a 10 percent rating when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion of the leg is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Diagnostic Code 5261 provides a 10 percent rating when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Full range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2012). Diagnostic Code 5257 provides ratings based on recurrent subluxation or lateral instability of the knee. A 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). A claimant who has arthritis or limitation of motion, and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257. However, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56704 (1998). Separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg, may be assigned for disability of the same knee. However, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOGCPREC 9-2004 (2004); 69 Fed. Reg. 59990 (2004). The Veteran essentially contends that prior to January 15, 2013, his service-connected degenerative joint disease of the left knee was more severe than compensated by the 10 percent rating assigned. He contends that since his private doctor determined his left knee was severe enough to warrant a total replacement, then it should have also warranted a higher rating. However, based on the evidence of record, prior to January 15, 2013, the Board concludes that a rating in excess of 10 percent for the service-connected degenerative joint disease of the left knee was not warranted. In April 2007, the Veteran underwent left knee arthroscopic surgery and he was assigned a temporary total rating for convalescence, effective from April 23, 2007, to June 30, 2007. Thereafter, treatment records dated from May 2007 through January 2013, show that the Veteran has consistently complained of chronic left knee pain, up to level 8 on the pain scale. Treatment records have shown, at most, mild loss of range of left knee motion, including in May 2007 when left knee range of motion was from 0 to 100 degrees, in August 2007 from 0 to 120 degrees, in February 2011 from 0 to 120 degrees, and in December 2012 from 0 to 125 degrees. While there have been findings of crepitus, swelling, and tenderness, at other points there have been negative findings in that regard. Thus, the objective findings do not show or approximate left knee extension limited to 15 degrees, or flexion of the left knee limited to 30 degrees, nor is there comparable functional impairment of the left knee that would warrant the assignment of any higher rating. While the Veteran consistently complained of left knee pain, up to 8 on the pain scale, and there were findings of crepitus and swelling, prior to January 15, 2013, his left knee did exhibit significant atrophy, weakness, or other signs of deformity reflecting significantly greater knee impairment. The Board is required to consider the effect of pain, weakness, fatigability, incoordination, and excess motion when rating a service-connected disability on the basis of limitation of motion. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has considered the veteran's complaints of pain, and all evidence of record related to limitation of motion, weakened motion, excess motion, incoordination, fatigability, and pain on motion, in determining that the preponderance of the evidence is against the veteran's claim of entitlement to a rating greater than 10 percent. Prior to January 15, 2013, the Veteran's functional impairment of the left knee, due to arthritis, was manifested by chronic pain and some loss of range of motion. The Board concludes that any functional loss due to pain experienced by the Veteran, prior to January 15, 2013, was adequately covered by the 10 percent rating assigned. Additionally, the Veteran has not identified any other functional limitation which would warrant a higher rating under any applicable rating criteria. 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). Therefore, the Board finds that the criteria for a rating in excess of 10 percent for the service-connected degenerative joint disease of the left knee, prior to January 15, 2013, have not been met. Further, the Board concludes that the competent evidence of record does not support a separate compensable rating, prior to January 15, 2013, for the left knee, under Diagnostic Code 5257, because the evidence does not objectively show slight recurrent subluxation or lateral instability. Although the Veteran has complained of his knee giving way and knee instability, on objective examination, his left knee has consistently found to be stable, or with no instability. Objective testing on examination has found no instability. Thus, the Board concludes that the competent evidence of record does not approximate a finding of slight subluxation or slight instability, as required for the assignment of any separate 10 percent rating under Diagnostic Code 5257, for the left knee, effective prior to January 15, 2013. In an effort to afford the Veteran the highest possible disability rating, the Board has considered his left knee disability under all other appropriate diagnostic codes, prior to January 15, 2013. However, he has never been diagnosed with or been shown to have ankylosis of the knee, impairment of the tibia and fibula, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5262, and 5263 do not apply. 38 C.F.R. § 4.71a (2012). Diagnostic Code 5259 is not applicable as it provides a maximum 10 percent rating for symptomatic removal of semilunar cartilage. However, the main symptom reported by the Veteran is painful motion, which has been considered in assigning the current 10 percent rating. Therefore, to assign any separate rating under Diagnostic Code 5259 would constitute pyramiding. 38 C.F.R. § 4.14 (2012). Under Diagnostic Code 5258, a 20 percent rating is warranted where the semilunar cartilage is dislocated with frequent episodes of locking, pain, and effusion into the joint. The Board notes that while the Veteran has reported episodes of pain, he has not reported, and the evidence does not show, frequent episodes of locking. Therefore, a higher or separate rating under Diagnostic Code 5258 is not warranted. With regard to the Veteran's assertions, that prior to January 15, 2013, his service-connected left knee disability was worse than reflected in the 10 percent rating, and specifically, that because his private doctor determined his left knee was severe enough to warrant a total replacement, his left knee should have also warranted a higher rating, 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 (1994). However, in this case, the Board finds the statements of the Veteran to be inconsistent with the overall medical evidence of record. The VA treatment records, private records, and VA examination dated prior to January 15, 2013, simply do not support the assignment of a rating in excess of 10 percent for the service-connected left knee, at any point during the pertinent appeal period. The Board places greater probative weight on the objective clinical evaluation of the Veteran's left knee at various points. The Board concludes that the medical evidence of record is persuasive that an increased rating for the service-connected degenerative joint disease of the left knee was not warranted, prior to January 15, 2013. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. 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. 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. 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 extraschedular rating. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds that the rating criteria for the Veteran's service-connected degenerative joint disease of the left knee reasonably describe his disability level and symptomatology, prior to January 15, 2013, and provide for higher ratings for more severe symptoms and functional limitations for the left knee, which were not shown. Therefore, the Board concludes that the disability picture for the Veteran's left knee was contemplated by the Rating Schedule; and the assigned schedular rating, prior to January 15, 2013, was adequate. Therefore, referral for the assignment of an extraschedular rating was not warranted. In summary, the Board finds that the preponderance of the evidence is against the assignment of any higher or separate rating prior to January 15, 2003, for degenerative joint disease of the left knee. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 10 percent, prior to January 15, 2013, for degenerative joint disease of the left knee is denied. ____________________________________________ HARVEY ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs