Citation Nr: 0007423 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-14 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an increased rating for the veteran's service- connected left knee disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Peter C. Lenart, Associate Counsel INTRODUCTION The veteran served on active duty in the military from June 1965 to June 1967. In August 1997 the Department of Veteran s Affairs (VA) Regional Office in Winston-Salem, North Carolina, denied the veteran's increased rating claim for his service-connected left knee disability, currently evaluated as 10 percent disabling. The veteran timely appealed to the Board of Veterans' Appeals (Board). The veteran's appeal is now before the Board for resolution. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran has complaints of left knee pain and there is x-ray evidence of minimal degenerative joint disease but he has full range of motion with no instability, swelling, or deformity of the left knee. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for the veteran's service-connected left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (1999). REASONS AND BASES FOR FINDING AND CONCLUSIONS Factual Background The veteran's service medical records indicate that he was treated for left knee problems on several occasions in service. A January 1967 separation examination notes complaints of left knee pain. The veteran was service- connected for residuals of a left knee injury, and received a noncompensable evaluation with an effective date of June 1967. In March 1982, the RO increased the veteran's disability rating from 0 to 10 percent disabling, effective from November 1981. In June 1984 the Board confirmed the veteran's 10 percent rating, as did the RO in subsequent rating decisions in November 1990 and December 1992. VA outpatient treatment records from March 1996 to May 1996 reveal that the veteran received treatment for complaints of pain, swelling and instability of the left knee. The veteran's range of motion was from 0 to 120 degrees, and the presence of crepitance was noted. The Lachman test for instability of the interior and posterior ligaments was negative. No lateral instability was observed. The McMurray test was positive. The veteran was hospitalized at a VA facility in March 1997. While this admission was primarily for medical difficulties unrelated to the veteran's left knee disability, an examination revealed mild crepitation in the knees, bilaterally. The examiner noted no weakness, deformity, paralysis or edema. The veteran reported his history of a left knee injury, but indicated that his left knee was not bothering him at that time. The veteran's knee condition was noted as part of the overall diagnosis. The veteran's claims file contains the report of a January 1998 VA examination. The veteran complained of left knee pain, and indicated that his knee was especially painful on cold, wet days. The examiner noted that the veteran had been provided with a brace to wear on his left knee. The veteran had not undergone any surgery on his left knee, and he indicated that he had not experienced any episodes of dislocation or of recurrent subluxation. Clinical evaluation revealed no obvious swelling or deformity. The veteran was observed to have full range of motion, from 0 to 140 degrees. All of his ligaments were noted to be intact, and there was no joint line pain. The veteran was observed to be able to stand on his toes and heels, and was able to squat. X-rays taken as part of the examination revealed minimal degenerative changes of the veteran's left knee. The staff radiologist found no acute abnormality. The examiner diagnosed the veteran with left knee pain with minimal degenerative joint disease (DJD). Analysis As a preliminary matter, the Board finds that the veteran's claim for an increased rating for his service-connected left knee disability is plausible and capable of substantiation and is therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a). A claim that a service-connected condition has become more severe is well grounded where the claimant asserts that a higher rating is justified due to an increase in severity of the disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The Board also is satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required in order to comply with the duty to assist. Id. Disability evaluations are determined by comparing a veteran's present symptom-atology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. 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; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. See 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, where entitlement to compensation is already established and the appropriateness of the present rating is at issue, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The appellant's left knee disability is rated in part under Diagnostic Code 5257. Diagnostic Code 5257 provides for the evaluation of "other" impairment of the knee, to include recurrent subluxation and lateral instability. A 10 percent is warranted for slight impairment. Ratings of 20 and 30 percent are warranted for moderate and severe impairment, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999). Additionally, other diagnostic codes may be appropriate for consideration in the instant case. Diagnostic Code 5010 of the Schedule provides for the assignment of disability evaluations for arthritis due to trauma, substantiated by x- ray findings, to be rated under Diagnostic Code 5003, which, in turn, provides that degenerative (hypertrophic or osteoarthritis) arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes (here, Diagnostic Codes 5260 and 5261), a rating of 10 percent is for application 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999). Diagnostic Code 5260 provides that limitation of flexion of either knee to 60 degrees warrants a zero percent evaluation. A 10 percent evaluation requires that flexion be limited to 45 degrees. A 20 percent evaluation requires that flexion of the knee be limited to 30 degrees. A 30 percent rating requires flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (1999). Diagnostic Code 5261 provides that limitation of extension of either knee to 5 degrees warrants a zero percent evaluation. A 10 percent evaluation requires that extension be limited to 10 degrees. A 20 percent evaluation requires that extension be limited to 15 degrees. A 30 percent evaluation requires that extension be limited to 20 degrees. A 40 percent rating requires that extension be limited to 30 degrees. A 50 percent rating, the maximum allowed under this code, requires that extension be limited to 45 degrees. 38 C.F.R § 4.71a, Diagnostic Code 5261 (1999). In the instant case, the veteran maintains that his current rating is not sufficient for the amount of disability that his left knee disability causes him. The veteran complains of chronic pain, and he utilizes both a knee brace and cane. Despite the pain complained of by the veteran, and the diagnosis of arthritis, the veteran has maintained full range of motion. According to 38 C.F.R. § 4.71, Plate II, VA considers normal range of motion to be from 0-140 degrees (extension-flexion), and the veteran's range of motion is not currently noted to be limited below this range. In addition, his 0 to 120 degrees range of motion noted in 1996 was only slightly less than normal. Also, the veteran cannot receive a higher rating under Diagnostic Code 5260 (for limitation of flexion) because, for a 20 percent rating under this code, flexion must be limited to at least 30 degrees. Additionally, under Diagnostic Code 5261 (for limitation of extension), for a 20 percent rating, extension must be limited to 15 degrees. Neither is the case here, as the veteran's flexion and extension are unimpaired according to the most current medical evidence of record. The veteran does not experience instability of the knee. The veteran's March 1997 VA treatment report contains no evidence of left knee instability, and the January 1998 VA examination noted that the veteran has had no episodes of dislocation or of recurrent subluxation. As such, he cannot receive separate ratings for instability and arthritis under VAOPGCPREC 23-97 due to the arthritis. Also, VAOPGCPREC 9-98 stipulates that the extent of the limitation of motion must be sufficient to meet the criteria for a compensable rating under Diagnostic Codes 5260 and 5261. As explained above, this is not the case. The Board further notes the veteran's complaints of chronic left knee pain, and observes that these complaints have been recorded in the veteran's most recent VA examinations, in both January 1998 and in December 1998. Such symptoms, the complaints of which the Board finds credible, must be considered in the assignment of the appropriate evaluation. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). While the veteran has complained of knee pain, there is no objective medical evidence substantiating symptomatology which would warrant a higher evaluation. Since the veteran currently experiences full range of motion in his left knee (0-140 degrees), he clearly does not have ankylosis that might entitle him to a higher rating under Code 5256. It is noted that the veteran has no complaints of recurrent episodes of "locking" of his left knee. An increased rating under Diagnostic Code 5258 requires that there be dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. There is no medical evidence that the veteran experiences these symptoms. As such, a higher rating is not warranted under this diagnostic code either. As the preponderance of the evidence is against the claim for a higher rating, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The above decision is based on the pertinent provisions of the VA's Schedule for Rating Disabilities. Additionally, however, the Board notes that there is no indication that the schedular criteria are inadequate to evaluate the veteran's disability since there has been no showing that it has caused marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), or necessitated frequent periods of hospitalization, or that the disability otherwise renders impracticable the application of the regular schedular standards. In the absence of evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A rating in excess of 10 percent for the veteran's service- connected left knee disability is denied. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals