Citation Nr: 0003605 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 97-05 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating for internal derangement of the right knee, rated 10 percent disabling prior to July 31, 1999, and noncompensable since July 31, 1999. 2. Entitlement to a permanent and total disability rating for non-service connected disability pension purposes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The veteran served on active duty from September 1982 to October 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. Prior to July 31, 1999, the veteran had no more than slight right knee impairment with minimal limitation of motion and functional limitation due to pain; there is no current objective evidence of functional limitation due to pain or instability. 3. The veteran has presented plausible evidence to support his claim of entitlement to a permanent and total disability rating for non-service connected pension purposes. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for a right knee disorder prior to July 31, 1999, and for a compensable evaluation subsequently have not been met. 38 U.S.C.A. §§ 1155, 5107(a)(West 1991); 38 C.F.R. §§ 3.105(e), 3.321(b)(1), 3.344, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71, Diagnostic Codes 5257, 5260, 5261 (1999). 2. The veteran's claim of entitlement to a permanent and total disability rating for non-service connected pension purposes is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Leonard M. Pickering, M.D., in a January 1995 orthopedic evaluation of the veteran's right knee, indicated that it was his impression that the veteran had a medial meniscus tear of the right knee associated with an anterior cruciate ligament injury. The examiner noted that the veteran initially injured his right knee during his service in the Persian Gulf War and subsequently reinjured it in a work-related fall. Upon examination, the veteran had an anterior drawer sign but there was no gross evidence of a posterior drawer sign. There was evidence of quadriceps atrophy and the veteran had a positive McMurray's sign at the medial joint line. His lateral ligaments appeared to be grossly intact and X-ray studies of the right knee showed well-maintained joint surfaces with some scalloping of the patella present. The physician recommended the veteran undergo magnetic resonance imaging (MRI) scan and future consideration of surgery. In an April 1995 evaluation, Roland J. Brandt, D.O., noted that the veteran complained of right knee pain in the medial aspect and that his knee would pop, lock and give out. He reported only occasional swelling and stated that the motion of his knee felt like sandpaper. The veteran used a cane in his left hand to assist his ambulation. The physician found that the veteran had mild atrophy of the quadriceps musculature. There was no evidence of right knee swelling, redness or increased warmth on palpation. There was tenderness along the medial aspect of the knee with palpation. Lachman's sign showed no evidence of instability of the anterior cruciate ligament. Anterior and posterior drawer tests were negative and varus and valgus stress examinations showed no evidence of laxity in the collateral ligaments. McMurray testing revealed some increased discomfort in the medial aspect without clicking; however the lateral aspect was unremarkable. His right knee motion was symmetrical with his left knee. His patella and Achilles reflexes were both 2+/4 bilaterally and X-ray studies of the right knee showed no evidence of fracture, dislocation or subluxation. Articular surfaces were normal with no evidence of joint space narrowing. The examiner diagnosed right knee pain. The examiner noted that the veteran had not worked since his November 1994 knee injury. A May 1995 private MRI study of the veteran's right knee showed small synovial effusion. There were no other specific abnormalities. A September 1995 VA compensation examination shows that the veteran complained that his right knee locked up and had a tendency to give out. He experienced some pain and periodically, his knee would swell with prolonged walking. He indicated that squatting was difficult due to pain in his knees. Examination of his right knee showed no evidence of swelling or deformity. Nor was there any evidence of quadriceps muscle atrophy. The veteran exhibited pain with patellar compression; however his joint line was nontender. McMurray and drawer signs were negative and X-ray studies of the right knee appeared to be normal. The examiner diagnosed internal derangement of the right knee. The examiner further opined that, while it was possible that there was some internal traumatic pathology, there was no clinical evidence at that time. It was recommended that the veteran undergo a MRI study. The November 1996 report of a VA general medical examination shows that the veteran had been employed for a few months and had to quit in November 1995 because he was unable to walk to work due to weakness. He complained of right knee pain and that the knee "pop[ped]." He also complained that the knee tended to give out and stated that he had fallen on frequent occasions. If he sat for too long a period he would experience right knee swelling and numbness. He wore a right knee brace. The examiner noted tenderness over the lateral and posterior aspects of the right knee. There was no evidence of effusion, heat, redness or instability. Right knee flexion was to 135 degrees and extension to 0 degrees. The examiner diagnosed internal derangement of the right knee. VA treatment records, dating from February to April 1997, show that the veteran was assessed with torn meniscal cartilage. During his April 1997 personal hearing, the veteran testified that he experienced chronic right knee pain. He wore a right knee brace and used a cane for ambulation. The veteran stated that his right knee would swell a lot during extreme temperatures. It also would give out and lock up two to three times a week. He described his right knee as very unstable. At his May 1997 VA orthopedic examination, the veteran complained of a burning sensation in his right knee and a tendency for the joint to give out. He stated that he had to use a cane at times. The veteran also had left knee complaints at the time and complained of pain when squatting. There was no swelling or deformity of the right knee. The examiner observed that the veteran's quadriceps muscle was well developed and that the veteran had some tenderness on palpation over the right knee, but that the patella was stable and translation was normal. The right knee range of motion was 0 to 130 degrees with a complaint of pain. McMurray's sign was negative and the drawer sign was 1+ positive. There was no joint line tenderness. The examiner noted that an October 1996 MRI study of the right knee showed impressions of tears in the posterior horn of the medial meniscus and minimal degenerative joint disease in the medial compartment. The examiner diagnosed the same. A December 1997 examination for the Michigan Department of Social Services shows a history of bilateral knee injury described as meniscal tears and degenerative arthritis. Pertinent abnormal findings showed decreased range of motion in both knees. The veteran was shown to use a cane and knee brace as assistive devices medically required for ambulation. An April 1998 examination report from the same agency again notes that the veteran had decreased range of motion in both knees and used both a knee brace and cane. During his August 1998 VA orthopedic examination, the veteran complained that his right knee gave out frequently and popped. He also complained of swelling and pain and stated that he used a knee brace. The examiner noted that the veteran had an elastic right knee brace and walked with a slow gait and without a cane. There was no evidence of any right leg neurological deficits, muscle atrophy or swelling. The examiner found that the veteran had normal right knee alignment, with no deformity, swelling or effusion. He complained of pain on palpation over the patella and the patellar position was normal. There was no joint line tenderness. Drawer and McMurray signs were negative, as was the Lachman sign. Right knee range of motion was 0 to 140 degrees with complaints of pain. X-ray studies of the right knee were within normal limits without evidence of arthritis. The examiner noted that a MRI study had been ordered, but that the veteran failed to report for the study. The examiner diagnosed subjective complaints of bilateral knee pain with no objective evidence of orthopedic pathology and opined that these subjective complaints of pain and weakness were not likely to limit the functional ability of the joints. The examiner also noted that there was no history of flare-ups. A February 1999 rating decision proposed to reduce the evaluation for the veteran's right knee disorder to a noncompensable rating because there was no objective evidence of any current disability at the time. The veteran was notified of the proposed reduction and given an opportunity to present additional evidence. He did not respond. A May 1999 rating decision reduced the veteran's right knee evaluation to 0 percent effective July 31, 1999. Analysis Right Knee Disorder A veteran's assertion of an increase in severity of a service-connected disorder constitutes a well-grounded claim requiring the VA fulfill the statutorily required duty to assist, 38 U.S.C.A. § 5107(a) (West 1991), because it is a new claim and not a reopened claim. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). A reduction in or discontinuance of compensation requires a proposed action with a recitation of all material facts and reasons for the reduction, notice to the veteran of that proposed action, and an opportunity for the veteran to present additional evidence. 38 C.F.R. § 3.105(e). If no additional evidence is received within the prescribed time period, the proposed action may be accomplished. Id. If a disability rating has been continued at the same level for long periods, i.e. five years or more, VA is required to afford the veteran a full and complete physical examination, the findings from which are to be considered in conjunction with the entire record. 38 C.F.R. § 3.344(a) and (c). See 38 C.F.R. § 3.951 (ratings in effect for 20 years are protected from reduction); Brown v. Brown, 5 Vet. App. 413, 418 (1993) (length of rating is measured from effective date of rating to the effective date of the reduction). A reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). When there is a change in a previously assigned diagnosis or etiology, the effect on the current disability rating must be considered. 38 C.F.R. § 4.13. The goal is to reconcile and continue the diagnosis or etiology upon which service connection was granted. Id. When any change in evaluation is required, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or in use of descriptive terms. Id. Of course, the rating agency is not precluded from correcting an erroneous rating or otherwise assigning a proper rating according to 38 C.F.R. § 4.7. Id. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and these ratings are based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155. The veteran's right knee disorder has been and is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, which provides a 10 percent evaluation for slight impairment of the knee, a 20 percent evaluation for moderate impairment, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. In every instance where the schedule does not provide a zero percent evaluation, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 Other potentially applicable Diagnostic Codes, that provide higher evaluations, include: Code 5256, ankylosis of the knee; Code 5260, limitation of flexion of the leg; Code 5261, limitation of extension of the leg; and Code 5262, impairment of the tibia and fibula. However, these diagnostic codes are factually inapplicable in this case. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). A precedent opinion from VA's Office of General Counsel (General Counsel) held that a veteran who has arthritis and instability of the knee may be rated separately under Codes 5003 and 5257. VAOPGCPREC 23-97. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (veteran is entitled to separate disability ratings for different manifestations of the same disability when the symptomatology of one manifestation is not duplicative or overlapping of the symptomatology of the other manifestations). A subsequent precedent opinion from General Counsel clarified that a separate rating for arthritis is in order if there is limitation of motion that is at least 0 percent disabling under Codes 5260 or 5261 or if there is X-ray evidence of arthritis and painful motion. VAOPGCPREC 9-98. The opinion also specified that the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered in assigning an evaluation for degenerative or traumatic arthritis under Code 5003 or Code 5010. Rating personnel must consider functional loss and clearly explain the impact of pain on the disability. Id. The medical evidence of record shows that prior to the August 1998 examination, the only indication of right knee instability was a January 1995 positive McMurray's sign and a May 1997 positive drawer sign. Otherwise, the examinations show no evidence of instability or more than slight limitation of motion. Based on these findings, it cannot be concluded that, under Diagnostic Code 5257, more than slight impairment had been demonstrated prior to July 31, 1999. Furthermore, while the May 1997 VA examiner noted that an earlier MRI study indicated minimal degenerative joint disease, the overwhelming volume of evidence, both X-ray and MRI studies, show that the veteran's right knee was well- aligned without evidence of arthritis. Therefore, the Board finds that 38 C.F.R. §§ 4.71a, Diagnostic Code 5003, and VAOPGCPREC 9-98 are not for consideration in this claim. In evaluating the veteran's rating subsequent to July 31, 1999, the Board finds initially that the August 1998 VA orthopedic examination was full and complete. In this regard, it is noted that a MRI study of the right knee was also scheduled; however, the veteran failed to report for the study. See Wamhoff v. Brown, 8 Vet. App. 517 (1996) (VA has duty to assist the veteran, not a duty to prove his claim while the veteran remains passive); accord Wood v. Derwinski, 1 Vet. App. 190 (1991). Further, the veteran was properly advised of the proposed reduction and his ability to submit additional evidence. The Board acknowledges the veteran's complaints of right knee pain and instability. However, considering these factors in conjunction with the August 1998 VA examiner's opinion that the veteran had no functional limitation as a result of his subjective complaints, the Board finds that the preponderance of the evidence is against a compensable disability rating for the right knee disability commencing July 31, 1999. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.71a, Code 5257. See Johnson v. Brown, 9 Vet. App. 7 (1996) (Board need not assign a separate rating for functional loss due to pain or weakness when the diagnostic code is not predicated on range of motion); Spurgeon v. Brown, 10 Vet. App. 194 (1997) (even if a separate rating for pain is not required, the Board is still obligated to provide reasons and bases regarding application of the regulation). In addressing these issues, the Board has consider all pertinent diagnostic codes under the VA Schedule for Rating Disabilities in 38 C.F.R. Part 4 and application of 38 C.F.R. § 4.40, regarding functional loss due to pain, and 38 C.F.R. § 4.45, regarding weakness, fatigability, incoordination or pain on movement of a joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence does not show additional limitation of motion to an extent which would warrant a higher rating. Thus, the Board finds that none of these regulations are more appropriate for the veteran's right knee disability Neither does the Board find that the veteran's right knee disability is so unusual or exceptional as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that the veteran's right knee injury has not necessitated frequent periods of hospitalization and there is no objective evidence that it resulted in marked interference with his employment. Pension Claim A pension is available to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to non-service connected disabilities which are not the result of his own willful misconduct. 38 U.S.C.A. § 1521(a) (West 1991); 38 C.F.R. § 3.342(a) (1999). Total disability exists when there is any impairment of the mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A disability is permanent if the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). See 38 U.S.C.A. § 1502(a) (defining permanent and total disability). In this case, the Board finds that the veteran has presented plausible evidence in support of his claim for entitlement to non-service connected disability pension benefits. See Vargas-Gonzales v. West, 12 Vet. App. 321, 329 (1999) (finding that a pension claim was well grounded when the veteran had qualifying wartime service, he completed the VA pension application as to his income, he might have the requisite total disability rating when all of his non-service connected disabilities were properly evaluated, and as to unemployability there was plausible evidence of record that he has had to resign from jobs due to his health problems and that he received some state-sponsored assistance). Therefore, the Board finds that the veteran's claim is well grounded. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. ORDER A rating in excess of 10 percent prior to July 31, 1999, and for a compensable evaluation commencing July 31, 1999, is denied. The veteran's claim of entitlement to a permanent and total disability rating for non-service connected disability pension purposes is well grounded; to this extent, the appeal is granted. REMAND As indicated above, the Board has determined that the veteran's claim for non-service connected disability pension benefits is well grounded. Therefore, VA has a duty to assist the veteran in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464 (1997). This duty includes the conduct of a thorough and comprehensive medical examination and the securing of pertinent private and VA medical records. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). Where the available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993) (citing Proscelle v. Derwinski, 2 Vet. App 629 (1992)). The veteran's last VA general medical examination, evaluating his nonservice-connected disabilities was performed in November 1996, three years ago. Moreover, the August 1998 VA orthopedic examiner noted that the veteran had not worked the prior two years because of congestive failure [sic] and that he was taking medication for an anxiety disorder. These disabilities have not been evaluated for consideration of his pension claim. The Board finds that another VA examination is required to determine the current status of the veteran's disabilities. The claims folder shows that the veteran received VA medical care at least through April 1997. The veteran should be asked to provide information as to any medical care received for his alleged non-service connected disabilities since that time. A review of the claims folder reveals that the veteran was awarded Social Security Administration (SSA) benefits in December 1998. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and request that he compile and return a complete list of all disabilities he currently experiences. He should comment on how these disabilities affect his ability to function. In addition, the RO should request that the veteran provide the names and addresses of any VA or private medical providers who have provided medical care for any of the disabilities listed since April 1997. Finally, the RO should request the veteran to complete and return and up-to- date employment information statement. 2. After securing the necessary releases, the RO should attempt to obtain medical records from the VA or private medical providers listed by the veteran, if any. Any records should be associated with the claims folder. 3. With any necessary authorization from the veteran, the RO should attempt to obtain copies of records pertaining to his award from the SSA and the records pertinent to the his claim for SSA disability benefits as well as the medical records relied upon concerning that claim. 4. The RO should afford the veteran a VA general medical examination to determine the nature and extent of all alleged current disabilities. All indicated tests and studies should be performed as deemed necessary by the examiner. The claims folder, to include the veteran's statement of disabilities requested above, must be made available to the physician for review prior to the examination, and the medical opinion should indicate whether the review was completed. The physician is specifically asked to list the appropriate diagnosis for any current disability present and to comment on the effect of any disabilities found on the veteran's ability to secure or retain employment. Prior to the examination, the RO must inform the veteran in writing of all consequences of his failure to report for the examination in order that he may make an informed decision regarding his participation in said examination. 5. After completing any necessary development in addition to that specified above, the RO should readjudicate the claim of entitlement to a permanent and total disability rating for non-service connected disability pension purposes. If the disposition remains unfavorable to the veteran, the RO should furnish the veteran a supplemental statement of the case and afford the applicable opportunity to respond. If the benefit sought on appeal is not granted to the veteran's satisfaction a supplemental statement of the case containing adequate reasons and bases should be issued and the veteran and his representative provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). JOHN R. PAGANO Member, Board of Veterans' Appeals