Citation Nr: 0005557 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 94-35 646 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to a higher rating for a service-connected right knee disability, currently evaluated 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Wasser, Associate Counsel INTRODUCTION The veteran served on active duty from September 1980 to March 1981, and from March 1981 to May 1984. This case comes to the Board of Veterans' Appeals (Board) from a May 1994 RO decision which granted service connection and a 10 percent rating for a right knee disability; the veteran appealed for a higher rating. In an October 1995 decision, the RO assigned a 20 percent rating for the service-connected right knee disability. The veteran requested personal hearings before an RO hearing officer and before a member of the Board. By a statement dated in May 1998, he withdrew his request for a Board hearing. In June 1998, the Board remanded the case to the RO for an RO hearing. An RO hearing was scheduled, but the veteran failed to report for such hearing. The case was subsequently returned to the Board. FINDING OF FACT The veteran's service-connected right knee disability is manifested by arthritis with full extension to 0 degrees and minimal limitation of flexion (ranging from 110 to 140 degrees), and there is no more than slight recurrent subluxation or lateral instability. CONCLUSION OF LAW A criteria for a rating in excess of 20 percent for a right knee disability are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty from September 1980 to March 1981, and from March 1981 to May 1984. A review of his service medical records shows that he was treated for a right knee injury. At a May 1994 VA orthopedic examination, the veteran reported that he injured his right knee during service. He reported post-service treatment for a right knee disability, including surgery on the anterior cruciate ligament (ACL) in 1985 and reconstructive surgery in 1992. He stated that both operations were performed by private doctors. He complained of right knee stiffness in the early morning, and said he had swelling if he walked and worked for eight hours. He reported no current treatment for the knee condition. On examination of the right knee, there was a well-healed four- inch surgical scar on the suprapatellar region. There was palpable, inaudible crepitus when the knee was hyperflexed. There was mild deformity of the knee, and there was no swelling, heat, subluxation, lateral instability, or nonunion. Range of motion was from 0 to 140 degrees. The veteran could squat and arise without pain or discomfort in the right knee. The examiner noted than an X-ray study showed mild medial joint space narrowing of the right knee, with osteophytes noted laterally. There was a metallic screw through the distal femur and two staples over the proximal tibia. The diagnosis was history of sprain of the right knee, followed by ACL surgery in 1985, and further surgery in 1992. The examiner stated that the veteran had mild degenerative joint disease of the right knee, with the expected post-operative changes, including a screw in the distal femur and staples in the proximal tibia. In May 1994 decision, the RO granted service connection and a 10 percent rating for post-operative residuals of a sprain of the right knee, with mild degenerative joint disease. By a statement dated in June 1994, the veteran asserted that his right knee disability was manifested by constant swelling and fluid in the knee, which resulted in pain if he stood for long periods of time. He stated that he wore a custom-fitted knee brace. By a statement dated in September 1994, the veteran reiterated many of his assertions. He complained of frequent pain and swelling of the right knee, and said his knee locked up when he walked. He asserted that a 30 percent rating should be assigned for his service-connected right knee disability. At a December 1994 VA orthopedic examination, the veteran complained of intermittent swelling of the right knee. He also complained of right knee pain, and said that if he stood for long periods of time, his knee swelled, and if he walked for a long time, the knee felt as if it were about to lock up. He stated that he wore a knee brace almost constantly. He stated that he was not taking any medication for this condition. On examination of the right knee, there was a well-healed surgical incision on the anterior aspect. There was crepitance on range of motion, and bogginess involving the synovium of the right knee. The outline of the femoral condyle was quite pronounced. Range of motion was from 0 to 110 degrees. There was no medial or lateral laxity, but there was a positive Lachman's test which was graded from 1+ to 2+. The examiner noted that an X-ray study showed staples in the proximal tibia and a screw in the intramedullary canal of the distal femur, and a tunnel; and such findings were compatible with a reconstruction of the ACL. The X-ray study showed widespread degenerative changes involving all three compartments, especially involving the patellofemoral compartment and the lateral compartment of the knee. The diagnostic impression was that the veteran had an ACL deficiency and underwent a reconstruction, but still had a degree of insufficiency and had developed post-traumatic arthritis and limitation of motion. In an October 1995 decision, the RO assigned a 20 percent rating for the service-connected right knee disability, and characterized the disability as post-operative residuals of a sprain of the right ACL, with widespread post-traumatic arthritis and limitation of motion. By a statement dated in December 1995, the veteran reiterated many of his assertions. He said his right knee disability was manifested by severe pain, lack of flexibility, and locking, swelling, and popping. He requested that another VA examination be scheduled. A February 1996 memorandum from a VA Medical Center (VAMC) indicates that the veteran failed to report for a scheduled VA examination. By a statement received in April 1996, the veteran said that he missed his scheduled VA examination since he moved to New Jersey, and requested that his VA examination be rescheduled. At an August 1996 VA orthopedic examination, the veteran reported that he had new onset locking of his right knee in the past six weeks, and also complained of swelling of the knee. He stated that his knee brace was lost in his recent move. On examination, the veteran had an antalgic gait on the right lower extremity. On examination of the right knee, there was a midline surgical scar consistent with an ACL repair, and arthroscopic portal scars. There was a moderate to large-sized joint effusion, the knee was slightly warm, and there was full range of motion, with crepitus of moderate degree. There was a definite end-point on the Lachman's examination, and meniscal signs were negative. An X-ray study showed the presence of screws in the distal femur and staples in the proximal tibia with ACL repair. A magnetic resonance imaging study (MRI) showed the posterior horn of the lateral meniscus; the findings were consistent with a partial meniscectomy versus an extensive complex tear. There were post-surgical changes of the ACL. There was transcompartmental osteoarthritis (degenerative joint disease) involving the lateral compartment, and a large joint effusion. The diagnoses were probable internal derangement of the right knee with synovitis, status post ACL reconstructive surgery; post-traumatic arthritis of the right knee (of mild to moderate intensity); synovitis of the right knee; and no MRI evidence of a re-tear of the ACL graft; the ACL graft was potent. At an August 1997 VA orthopedic examination, the veteran complained of swelling and locking of the right knee. On examination, the veteran had a mild antalgic gait on the affected right lower extremity. Inspection of the knee revealed a well-healed anterior surgical scar consistent with ACL repair, and well-healed arthroscopic portal scars. There was moderate joint effusion, and range of motion was from 0 to 130 degrees. There was some pain on full flexion. ACL stability was good on performance of the Lachman's test and the anterior drawer sign. Medial and lateral stability were also good. The meniscal sign tests, with lateral palpation of the joint line, were uncomfortable for the veteran. The examiner stated that medially, the veteran did not complain of pain. McMurray's sign was negative. The diagnosis was post-traumatic arthritis of the right knee of mild to moderate severity status post ACL tear with subsequent repair, and associated pain. The examiner stated that with pain in the knee, the veteran's motion would be limited somewhat, but noted that range of motion was within normal limits currently. He stated that with pain, the veteran's range would be somewhat less, but would still be functional enough to allow him to ambulate and climb stairs. He stated that with pain, there could be some weakened movement and excessive fatigability, but not to the point that the knee would be grossly unstable. A memorandum from a VAMC dated in September 1997 reflects that the veteran failed to report for VA examinations scheduled in August 1997 and September 1997. VA outpatient treatment records dated in 1997 are negative for treatment of a right knee disability. In a written presentation dated in May 1998, the veteran's representative asserted that a separate rating should be assigned for the veteran's arthritis of the right knee. In February 1999, the veteran requested that a VA examination scheduled for the following day be rescheduled. A February 1999 memorandum from a VAMC indicates that the veteran failed to report for a scheduled VA examination. An April 1999 memorandum from a VAMC indicates that the veteran failed to report for a scheduled VA examination. A May 1999 report of contact reflects that the veteran requested that his VA examination be rescheduled, as he did not receive notice of this examination until the day of the appointment. By a letter to the veteran dated in June 1999, the RO advised him that another VA examination was being scheduled, and stated that if he failed to report for such examination, his claim would be evaluated based on the evidence of record. By a letter received in July 1999, the veteran stated that he moved to Virginia. An October 1999 memorandum from a VAMC indicates that the veteran failed to report for a scheduled VA examination. In a February 2000 written presentation, the veteran's representative asserted that the veteran's claim should be remanded to the RO for another VA examination, and said the veteran should be given notice of the consequences of a failure to report for such. II. Analysis The veteran's claim for a rating in excess of 20 percent for his service-connected right knee disability is well grounded, meaning plausible. The file shows that the RO has properly developed the evidence to the extent possible, and there is no further VA duty to assist the veteran with his claim. 38 U.S.C.A. § 5107(a). In this regard, the Board notes that the veteran failed to report for several VA examinations, and was advised of the consequences of such failure. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Governing regulation provides that his claim must therefore be reviewed based on the evidence of record. 38 C.F.R. § 3.655. Hence, a remand to schedule another VA examination, as requested by the veteran's representative, is not in order. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. A knee impariment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. 4.71a, Code 5257. The Board notes that the veteran's right knee disability includes traumatic arthritis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Pursuant to Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When there is at least some limitation of motion, but which would not be rated compensable under a limitation-of-motion code, a 10 percent rating may be assigned for each major joint or group of minor joints affected by arthritis. Further, limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Limitation of flexion of either leg to 60 degrees is rated 0 percent. Flexion limited to 45 degrees warrants a 10 percent evaluation, and flexion limited to 30 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a, Code 5260. Limitation of extension of either leg to 5 degrees is rated 0 percent. Extension limited to 10 degrees warrants a 10 percent evaluation. Extension limited to 15 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a, Code 5261. In recent precedent opinions, the VA General Counsel has held that separate ratings may be assigned for X-ray findings of arthritis with limitation of motion of a knee (Codes 5003- 5010) and for instability of a knee (Code 5257). VAOPGCPREC 9-98 and 23-97. For a knee disability rated under Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Codes 5260 or 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9- 98. The medical evidence shows that the veteran has arthritis with slight limitation of flexion of the right knee. At the May 1994 VA examination, the right knee had extension to 0 degrees and flexion to 140 degrees. This is full range of motion. 38 C.F.R. § 4.71, Plate II. At the December 1994 VA examination, right knee range of motion was from 0 to 110 degrees. At the August 1996 VA examination, right knee range of motion was full. At the August 1997 VA examination, right knee range of motion was from 0 to 130 degrees, with some pain on full flexion. At the most recent VA examination in August 1997, the examiner opined that with pain, the veteran's range would be somewhat less, but would still be functional enough to allow him to ambulate and climb stairs. He stated that with pain, there could be some weakened movement and excessive fatigability, but not to the point that the knee would be grossly unstable. The medical evidence does not show that the veteran has a compensable degree of limitation of motion of the right knee if strictly rated under the provisions of Codes 5260 and 5261. However, the presence of arthritis and at least minimal limitation of flexion supports a 10 percent rating under Codes 5003 and 5010. Additional limitation of motion due to pain on use or during flare-ups, to the extent required for a rating higher than 10 percent, is not shown. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The medical evidence generally shows no laxity of the veteran's right knee ligaments and that he has good stability of the knee. There are some conflicting findings of a positive Lachman's sign (for lateral instability). Overall, the evidence depicts no more than slight recurrent subluxation or lateral instability of the right knee. Such supports no more than a 10 percent rating under Code 5257. In sum, the right knee disability may be rated 10 percent based on arthritis with minimal limitation of motion, plus 10 percent for instability. This combines (38 C.F.R. § 4.25) to 20 percent, which is the current disability rating. The Board finds that the preponderance of the evidence is against the claim for a rating higher than 20 percent for the service-connected right knee disability. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating higher than 20 percent for a service-connected right knee disability is denied. L. W. TOBIN Member, Board of Veterans' Appeals