Citation Nr: 0924681	
Decision Date: 07/01/09    Archive Date: 07/14/09

DOCKET NO.  08-10 084	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUE

1.  Entitlement to an increased rating for a right knee 
strain which is currently rated as 10 percent disabling.

2.  Entitlement to an increased rating for a left knee strain 
which is currently rated as 10 percent disabling.


ATTORNEY FOR THE BOARD

Megan L. Engebretson, Associate Counsel


INTRODUCTION

The Veteran had active service from October 1992 to April 
2001.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 2007 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Columbia, South Carolina.

Jurisdiction over the Veteran's case was subsequently 
transferred to the Montgomery, Alabama RO.


FINDINGS OF FACT

1.  The Veteran can fully extend and flex her left knee, 
experiencing pain in the last 10 degrees of extension, and 
last five degrees of flexion.

2.  The Veteran can fully extend and flex her right knee, 
experiencing pain in the last five degrees of extension, and 
last five degree of flexion. 

3.  The Veteran does not experience additional pain or 
limitation of motion with repetitive extension or flexion of 
the knees.

4.  There is no evidence during the appeal period that the 
Veteran's left or right knee disability has manifested 
lateral instability or recurrent subluxation; ankylosis of 
the joint; or dislocation of the cartilage.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent for 
left knee strain are not met at any time during the appellate 
period.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 
2008); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, 
Diagnostic Code 5099-5024, 5003, 5256, 5257, 5258, 5259, 
5260, 5261, 5262 (2008).

2.  The criteria for a rating in excess of 10 percent for 
right knee strain are not met at any time during the 
appellate period.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 
2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.40, 4.45, 
4.59, 4.71a, Diagnostic Code 5099-5024, 5003, 5256, 5257, 
5258, 5259, 5260, 5261, 5262 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran contends, in substance, that his service-
connected knee disabilities are more disabling than currently 
evaluated.

I.  Duties to Notify and Assist

The 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; 38 C.F.R. §§ 3.102, 3.156(a), 
3.159, 3.326(a).  Upon receipt of a complete or substantially 
complete application for benefits, VA is required to notify 
the claimant and 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 in 
accordance with 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).  

Here, the duty to notify described above was satisfied by way 
of a letter sent to the Veteran in September 2006 that fully 
addressed the notice elements above and was sent prior to the 
initial AOJ decision in this matter.  The letter informed the 
Veteran of what evidence was required to substantiate the 
claim and of the Veteran's and VA's respective duties for 
obtaining evidence.  Dingess v. Nicholson, 19 Vet. App. 473 
(2006).

For an increased-compensation claim, section § 5103(a) 
requires, at a minimum, that the Secretary notify the Veteran 
that, to substantiate a claim, the Veteran must provide, or 
ask the Secretary to obtain, medical or lay evidence 
demonstrating a worsening or increase in severity of the 
disability and the effect that worsening has on the Veteran's 
employment and daily life.  Vazquez-Flores v. Peake, 22 Vet. 
App. 37 (2008).  Further, if the Diagnostic Code under which 
the Veteran is rated contains criteria necessary for 
entitlement to a higher disability rating that would not be 
satisfied by the Veteran demonstrating a noticeable worsening 
or increase in severity of the disability and the effect that 
worsening has on the Veteran's employment and daily life 
(such as a specific measurement or test result), the 
Secretary must provide at least general notice of that 
requirement to the Veteran.  Additionally, the Veteran must 
be notified that, should an increase in disability be found, 
a disability rating will be determined by applying relevant 
Diagnostic Codes, which typically provide for a range in 
severity of a particular disability from noncompensable to as 
much as 100 percent (depending on the disability involved), 
based on the nature of the symptoms of the condition for 
which disability compensation is being sought, their severity 
and duration, and their impact upon employment and daily 
life.  As with proper notice for an initial disability rating 
and consistent with the statutory and regulatory history, the 
notice must also provide examples of the types of medical and 
lay evidence that the Veteran may submit (or ask the 
Secretary to obtain) that are relevant to establishing 
entitlement to increased compensation e.g., competent lay 
statements describing symptoms, medical and hospitalization 
records, medical statements, employer statements, job 
application rejections, and any other evidence showing an 
increase in the disability or exceptional circumstances 
relating to the disability.  Id. at 43-44.  

Here, the duty to notify was not satisfied prior to the 
initial unfavorable decision on the claim by the AOJ.  Under 
such circumstances, VA's duty to notify may not be 
"satisfied by various post-decisional communications from 
which a claimant might have been able to infer what evidence 
the VA found lacking in the claimant's presentation."  
Rather, such notice errors may instead be cured by issuance 
of a fully compliant notice, followed by readjudication of 
the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. 
Cir. 2006) (where notice was not provided prior to the AOJ's 
initial adjudication, this timing problem can be cured by the 
Board remanding for the issuance of a VCAA notice followed by 
readjudication of the claim by the AOJ); 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 an SOC or SSOC, is sufficient to cure a 
timing defect).  

In this case, the duty to notify was satisfied subsequent to 
the initial AOJ decision by way of a letter sent to the 
Veteran in June 2008 that fully addressed all four notice 
elements.  The letter informed the Veteran of what evidence 
was required to substantiate the claim and of the Veteran's 
and VA's respective duties for obtaining evidence.  The 
Veteran was also asked to submit evidence and/or information 
in her possession to the AOJ.  Although the notice letter was 
not sent before the initial AOJ decision in this matter, the 
Board finds that this error was not prejudicial to the 
Veteran because the actions taken by VA after providing the 
notice have essentially cured the error in the timing of 
notice.  Not only has the Veteran been afforded a meaningful 
opportunity to participate effectively in the processing of 
her claim and given ample time to respond, but the AOJ also 
readjudicated the case by way of a supplemental statement of 
the case sent in April 2009 after the notice was provided.  
For these reasons, it is not prejudicial to the Veteran for 
the Board to proceed to finally decide this appeal as the 
timing error did not affect the essential fairness of the 
adjudication.  

VA has a duty to assist the Veteran in the development of the 
claim.  This duty includes assisting the Veteran in the 
procurement of service treatment records and other pertinent 
records and providing an examination when necessary.  
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the Veteran.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO obtained VA treatment records 
dated from April 2001 to November 2001.  The Veteran 
submitted private treatment records dated in November 2004, 
June 2006 to October 2006, and December 2007.  The Veteran 
was afforded VA Compensation and Pension (C&P) examinations 
for her right and left knee strain in October 2006.  
Significantly, neither the Veteran nor her representative has 
identified, and the record does not otherwise indicate, any 
additional existing evidence that is necessary for a fair 
adjudication of the claim that has not been obtained.  Hence, 
no further notice or assistance to the Veteran is required to 
fulfill VA's duty to assist the Veteran in the development of 
the claim.  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, 16 
Vet. App. 183 (2002).

II.  Increased Rating

As noted above, the Veteran claims that his service-connected 
knee disabilities are more disabling than currently 
evaluated.  For historical purposes, it is noted that service 
connection was established for these disabilities by the RO 
in St. Petersburg, Florida in a December 2001 decision.  In 
June 2006, the RO in Montgomery, Alabama received the 
Veteran's current claim for increased ratings for these 
disabilities.

Disability evaluations are determined by the application of a 
schedule of ratings which is based on average impairment of 
earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  
Separate diagnostic codes identify the various disabilities.  
Disabilities must be reviewed in relation to their history.  
38 C.F.R. § 4.1.  Other applicable, general policy 
considerations are: interpreting reports of examination in 
light of the whole recorded history, reconciling the various 
reports into a consistent picture so that the current rating 
may accurately reflect the elements of disability, 38 C.F.R. 
§ 4.2; resolving any reasonable doubt regarding the degree of 
disability in favor of the claimant, 38 C.F.R. § 4.3; where 
there is a question as to which of two evaluations apply, 
assigning the higher of the two where the disability picture 
more nearly approximates the criteria for the next higher 
rating, 38 C.F.R. § 4.7; and, evaluating functional 
impairment on the basis of lack of usefulness, and the 
effects of the disabilities upon the person's ordinary 
activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 
Vet. App. 589 (1991).

When evaluating joint disabilities rated on the basis of 
limitation of motion, VA may consider granting a higher 
rating in cases in which functional loss due to pain, 
weakness, excess fatigability, or incoordination is 
demonstrated, and those factors are not contemplated in the 
relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; 
DeLuca v. Brown, 8 Vet. App. 202 (1995).

Pyramiding, the evaluation of the same disability, or the 
same manifestation of a disability, under different 
diagnostic codes, is to be avoided.  38 C.F.R. § 4.14.  It is 
possible, however, for a Veteran to have separate and 
distinct manifestations attributable to the same injury, 
which would permit a rating under several diagnostic codes.  
The critical element permitting the assignment of multiple 
ratings under several diagnostic codes is that none of the 
symptomatology for any one of the conditions is duplicative 
or overlapping with the symptomatology of the other 
condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

The Veteran's right and left knee strains are each currently 
rated as 10 percent disabling under 38 C.F.R. § 4.71a, 
Diagnostic Code 5099-5024.  Hyphenated diagnostic codes are 
used when a rating under one diagnostic code requires use of 
an additional diagnostic code to identify the basis for the 
evaluation assigned; the additional code is shown after the 
hyphen.  38 C.F.R. § 4.27 (2007).  When an unlisted disease, 
injury, or residual condition is encountered, requiring 
rating by analogy, the diagnostic code number will be 
"built-up" as follows: the first two digits will be 
selected from that part of the schedule most closely 
identifying the part, or system of the body involved, in this 
case, the musculoskeletal system, and the last two digits 
will be "99" for all unlisted conditions.  Then, the 
disability is rated by analogy under a diagnostic code for a 
closely related disability that affects the same anatomical 
functions and has closely analogous symptomatology.  See 38 
C.F.R. §§ 4.20, 4.27 (2008).  In this case, the RO has 
determined that the diagnostic code most analogous to the 
Veteran's right and left knee strain is DC 5024, which 
pertains to tenosynovitis.

Diagnostic Code 5003 provides that degenerative arthritis 
that is established by x-ray findings will be rated on the 
basis of limitation of motion under the appropriate 
diagnostic codes for the specific joint or joints involved.  

When there is no limitation of motion of the specific joint 
or joints that involve degenerative arthritis, Diagnostic 
Code 5003 provides a 20 percent rating for degenerative 
arthritis with x-ray evidence of involvement of two or more 
major joints or two or more minor joint groups, with 
occasional incapacitating exacerbations, and a 10 percent 
rating for degenerative arthritis with x-ray evidence of 
involvement of two or more major joints or two or more minor 
joint groups.  Note (1) provides that the 20 percent and 10 
percent ratings based on x-ray findings will not be combined 
with ratings based on limitation of motion.  Note (2) 
provides that the 20 percent and 10 percent ratings based on 
x-ray findings, above, will not be utilized in rating 
conditions listed under Diagnostic Codes 5013 to 5024, 
inclusive.

When there is some limitation of motion of the specific joint 
or joints involved that is noncompensable (0 percent) under 
the appropriate diagnostic codes, Diagnostic Code 5003 
provides a rating of 10 percent for each such major joint or 
group of minor joints affected by limitation of motion, to be 
combined, not added under Diagnostic Code 5003.  Limitation 
of motion must be objectively confirmed by findings such as 
swelling, muscle spasm, or satisfactory evidence of painful 
motion. 

When there is limitation of motion of the specific joint or 
joints that is compensable (10 percent or higher) under the 
appropriate diagnostic codes, the compensable limitation of 
motion should be rated under the appropriate diagnostic codes 
for the specific joint or joints involved.  38 C.F.R. § 
4.71a.  

Diagnostic Code 5256 provides ratings for ankylosis of the 
knee.  Favorable ankylosis of the knee, with angle in full 
extension, or in slight flexion between zero degrees and 10 
degrees, is rated 30 percent disabling.  Unfavorable 
ankylosis of the knee, in flexion between 10 degrees and 20 
degrees, is to be rated 40 percent disabling; unfavorable 
ankylosis of the knee, in flexion between 20 degrees and 45 
degrees, is rated 50 percent disabling; and extremely 
unfavourable flexion at an angle of 45 degrees or more, is to 
be rated 60 percent disabling.  38 C.F.R. § 4.71a.

Diagnostic Code 5257 provides ratings for other impairment of 
the knee that includes recurrent subluxation or lateral 
instability.  Slight recurrent subluxation or lateral 
instability of the knee is rated 10 percent disabling; 
moderate recurrent subluxation or lateral instability of the 
knee is rated 20 percent disabling; and severe recurrent 
subluxation or lateral instability of the knee is rated 30 
percent disabling.  38 C.F.R. § 4.71a.  Separate disability 
ratings are possible for arthritis with limitation of motion 
under Diagnostic Code 5003 and instability of a knee under 
Diagnostic Code 5257.  See VAOPGCPREC 23-97.  When x-ray 
findings of arthritis are present and a Veteran's knee 
disability is rated under Diagnostic Code 5257, the Veteran 
would be entitled to a separate compensable rating under 
Diagnostic Code 5003 if the arthritis results in 
noncompensable limitation of motion or objective findings or 
indicators of pain.  See VAOPGCPREC 9-98.

Diagnostic Code 5258 provides a 20 percent rating for 
dislocated semilunar cartilage with frequent episodes of 
"locking," pain, and effusion into the joint.  
38 C.F.R. § 4.71a.

Diagnostic Code 5259 provides a 10 percent rating for removal 
of semilunar cartilage that is symptomatic.  38 C.F.R. § 
4.71a.

Diagnostic Code 5260 provides ratings based on limitation of 
flexion of the leg.  Flexion of the leg limited to 60 degrees 
is rated noncompensably (0 percent) disabling; flexion of the 
leg limited to 45 degrees is rated 10 percent disabling; 
flexion of the leg limited to 30 degrees is rated 20 percent 
disabling; and flexion of the leg limited to 15 degrees is 
rated 30 percent disabling.  38 C.F.R. § 4.71a.  See 
VAOPGCPREC 09-04 (separate ratings may be granted based on 
limitation of flexion (Diagnostic Code 5260) and limitation 
of extension (Diagnostic Code 5261) of the same knee joint). 

Diagnostic Code 5261 provides ratings based on limitation of 
extension of the leg.  Extension of the leg limited to 5 
degrees is rated noncompensably (0 percent) disabling; 
extension of the leg limited to 10 degrees is rated 10 
percent disabling; extension of the leg limited to 15 degrees 
is rated 20 percent disabling; extension of the leg limited 
to 20 degrees is rated 30 percent disabling; extension of the 
leg limited to 30 degrees is rated 40 percent disabling; and 
extension of the leg limited to 45 degrees is rated 50 
percent disabling.  38 C.F.R. § 4.71a.  See VAOPGCPREC 09-04 
(separate ratings may be granted based on limitation of 
flexion (Diagnostic Code 5260) and limitation of extension 
(Diagnostic Code 5261) of the same knee joint). 

Normal ranges of motion of the knee are to 0 degrees in 
extension, and to 140 degrees in flexion.  38 C.F.R. § 4.71, 
Plate II.  

Diagnostic Code 5262 provides ratings based on impairment of 
the tibia and fibula.  Malunion of the tibia and fibula with 
slight knee or ankle disability is rated 10 percent 
disabling; malunion of the tibia and fibula with moderate 
knee or ankle disability is rated 20 percent disabling; and 
malunion of the tibia and fibula with marked knee or ankle 
disability is rated 30 percent disabling.  Nonunion of the 
tibia and fibula with loose motion, requiring a brace, is 
rated 40 percent disabling.  38 C.F.R. § 4.71a.

Turning to the relative evidence of record, the Veteran was 
afforded a second C&P examination in October 2006.  During 
the examination the Veteran complained of constant, dull, 
nagging pain in both knees which is given some relief by 
daily Motrin usage.  The Veteran complained of flare ups with 
changes in the weather.  The Veteran had not had surgery on 
either knee.  

Upon examination, both knees appeared normal without swelling 
or deformity.  The examiner noted a regular gait.  The 
Veteran was able to fully extend and flex her left knee with 
pain in the last 10 degrees of extension and last five 
degrees of flexion.  The Veteran could fully extend and flex 
her right knee with pain in the last five degrees of 
extension and flexion.  The Veteran did not have any 
additional limitation in either knee after repetitive 
extension and flexion.  Additionally, the examiner noted that 
both knees are stable and had normal x-rays.  The examiner 
diagnosed the Veteran with mild chronic strain in both knees.

In light of the evidence, the Veteran is not entitled to a 
rating in excess of 10 percent disabling for her right or 
left knee strain disabilities.  The Veteran does not meet the 
criteria for a rating of 20 percent disabling in either knee.  
As previously mentioned, the next-higher disability rating of 
20 percent requires extension limited to 15 degrees, or 
flexion limited to 30 degrees.  The Veterans extension and 
flexion exceeded this range in both C&P examinations and 
there is no other evidence indicating that the Veteran had 
extension limited to 15 degrees or flexion limited to 30 
degrees.  The Board has considered functional loss due to 
pain, etc, in the knees, and notes that on examination pain 
began in both knees with the last 10 degrees of motion (which 
would only support the 10 percent evaluations assigned).  See 
DeLuca, 8 Vet. App. 202 (1995).

The Board has considered whether any other relevant 
diagnostic code would allow for a higher disability rating at 
any time during the pendency of the Veteran's claim. However, 
the evidence of record does not demonstrate that the Veteran 
has exhibited any symptoms that would warrant the application 
of any other diagnostic code throughout the pendency of her 
claim.  The Veteran's knee disability does not manifest 
instability, ankylosis, or tibia malunion.  38 C.F.R. § 
4.71a, Diagnostic Code 5256, 5257, 5258, 5259, 5262.  As 
such, the Veteran would not be entitled to a higher 
disability evaluation under any other diagnostic code, and 
her claim is denied.

In reaching the decision above the Board considered the 
doctrine of reasonable doubt, however, as the preponderance 
of the evidence is against entitlement to an increased rating 
for the Veteran's right and left knee strain, the doctrine is 
not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).

The Board finds that this matter need not be remanded to have 
the RO refer the Veteran's claim to the Under Secretary for 
Benefits or to the Director of the Compensation and Pension 
Service, pursuant to 38 C.F.R. § 3.321(b), for assignment of 
an extraschedular rating.  The Board notes the above 
determination is based on application of pertinent provisions 
of the VA's Schedule for Rating Disabilities, and there is no 
showing that the Veteran's disability reflects so exceptional 
or so unusual a disability picture as to warrant the 
assignment of a higher rating on an extraschedular basis, and 
indeed, neither the Veteran nor her representative have 
identified any exceptional or unusual disability factors. 
 See 38 C.F.R. § 3.321.  The Board observes that there is no 
showing the disability results in marked interference with 
employment.  In fact, the Veteran does not contend that her 
right and left knee disabilities interfere with her work at 
all.  Her disability has not required any, let alone, 
frequent periods of hospitalization, or otherwise rendered 
impractical the application of the regular schedular 
standards.  Absent evidence of these factors, the criteria 
for submission for assignment of an extraschedular rating are 
not met.  Thus, a remand this claim to the RO for the 
procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not 
necessary.  See Bagwell v. Brown, 9 Vet. App. 337, 338-39 
(1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash 
v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

Entitlement to an increased rating for right knee strain 
which is currently rated as 10 percent disabling is denied.
 
Entitlement to an increased rating for left knee strain which 
is currently rated as 10 percent disabling is denied.



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals






 Department of Veterans Affairs



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