Citation Nr: 0004231 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 95-26 894 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a right knee disorder. 3. Whether the 10 percent rating assigned the service- connected left knee disorder was proper. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Henriquez, Associate Counsel INTRODUCTION The veteran had active service from December 1975 to October 1981. In a May 1994 rating action, the RO denied service connection for a right knee disorder and a low back disorder and granted service connection for a left knee disorder with a 10 percent evaluation. The veteran appealed all three issues. FINDINGS OF FACT 1. The veteran has not submitted evidence to justify a belief by a fair and impartial individual that his claim for service connection for a back disorder is plausible. 2. The veteran has not submitted evidence to justify a belief by a fair and impartial individual that his claim for service connection for a right knee disorder is plausible. 3. The veteran's left knee disorder is manifested by complaints of pain, with clinical findings including full range of motion and stability and no swelling. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim with respect to the issue of service connection for a back disorder. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran has not submitted evidence of a well-grounded claim with respect to the issue of service connection for a right knee disorder. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's left knee disorder is not more than 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.59, 4.71(a), Diagnostic Code 5259 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Facts A review of the service medical records reveals that there were no complaints, findings, or diagnoses pertaining to the right knee or the back. In a June 1976 treatment record, the veteran complained of "loose knees" since basic training. On examination, range of motion was within normal limits for both knees. The right knee had a 1-2+ laxity of the medial collateral ligament and there was tenderness on the post medial facet on both patellae. No diagnosis was made. In a January 1977 treatment record, the veteran complained of low back pain which he claimed had its onset a year ago. It was noted that there was no record of this. On examination, there was no acute tenderness. Musculature was well developed. There were tight lumbar paraspinals with increased lumbar lordosis. Range of motion was increased secondary to tightness. Deep tendon reflexes were 1+ bilaterally. Straight leg raising was to 80 degrees bilaterally. Neurological examination was negative. The impression was muscle tightness and poor posture. In an August 1979 treatment record, it was noted that the veteran complained of back problems before but that it was gone in 2 to 3 days. The present attack lasted for one week without trauma. The veteran complained of much worsening of the low back and stiffness particularly after prolonged periods of sitting. On examination, there was a hyperlordotic lumbar spine that reversed with flexion. Pain was experienced over extensive lumbar spine. The impression was lumbar joint syndrome secondary to lordotic lumbar spine. In an October 1979 treatment record, the veteran complained of recurrent back pain with radiation. On examination there was good forward flexion with slight paralumbar pain without spasm. There was pain with hyperextension. Straight leg raising was negative. The impression was recurrent lumbar facet syndrome. In October 1979 treatment records, the veteran complained of pain in both knees that had lasted for 4 years. The left knee had greater pain than the right knee. He stated that his knees bothered him especially in the morning, cold weather, and when running. He stated that his knees gave out frequently, He had no known allergies. It was noted that the veteran had mild chondromalacia patella of the right knee and moderate chondromalacia patella of the left knee which was not responding well to physical therapy. Examination elicited retropatellar pain, chrondromalacia patella bilaterally, and infrapatellar tendonitis in the left knee. Active range of motion of both knees was 10/130. Squats were good bilaterally. Straight leg raising was good on right but lagged some on left. Both patellae were mobile. There was non palpable pain in the collateral ligament. The veteran demonstrated normal gait. In a November 1979 treatment record, the veteran complained of pain in the low back, which had been hurting for two days. On examination, he could move from side to side and could bend over and touch his knees. Forward flexion was to 60 degrees with spinal tenderness. Straight leg raising was positive on the right at 95 degrees and with radiation. Straight leg raising was negative on the left. The impression was mild lumbosacral strain. In a March 1980 treatment record, the veteran complained of right knee pain. There was no injury to the knees. There was full range of motion in both knees. There was pain in the right knee when flexed. There was no swelling. The assessment was chondromalacia patella of the right knee. In a March 1980 treatment record, the veteran complained of low back pain which had lasted for 4 days. Straight leg raising was within normal limits. With pronation, straight leg raising produced painful spasms of the paraspinal muscles. The assessment was a question of paraspinal muscle spasms. In an April 1980 treatment record, the veteran gave a history of intermittent low back pain without radiation. He also had bilateral chondromalacia. He stated that his low back pain has increased in the past two weeks. Forward flexion was about 80 degrees without radiation. He complained of vague soreness of the left lumbosacral area with spasm. Straight leg raising to 80 degrees was negative. The impression was mechanical low back pain. In a February 1981 treatment record, the veteran complained of low back pain on motion for one month. On examination, he was in no acute distress. He could raise his legs to 90 degrees without difficulty. There was no costovertebral tenderness. The assessment was low back strain. On report of medical history prior to discharge examination, the veteran noted that he had recurrent back pain. On discharge examination in August 1981, the veteran's spine was found to be normal. There were no findings, diagnoses, or treatment of a knee or back disorder. In a September 1981 service treatment record, the veteran complained of a sore back for 4 weeks. It was noted that the vet had a history of back problems lifting weights as a truck driver. On examination, there was -1 limitation in range of motion. The assessment was ligamentous strain of the low back with muscle spasm. There was no neurological assessment. The veteran was treated as an outpatient on a number of occasions by VA in 1982. Treatment was afforded only his left knee complaints, which were attributed to a recent (post-service) injury. There was no mention of complaints or findings related to the right knee or back. Received into the record were numerous private medical reports relating to treatment of the left knee in the late 1980s and early 1990s following on the job injuries. These records show that workers compensation claims were filed. The veteran underwent surgical repair of an anterior cruciate ligament tear of the lateral and medial meniscus. These records, and a private hospital summary, do not reflect any complaints, findings, history or diagnoses relating to the right knee or back. Private outpatient treatment records dated in May 1993 reveal that the veteran sustained an injury to his right knee. The assessment was a right knee contusion. He denied any other injuries. X-ray study revealed an avulsion-type fracture of the patella. The veteran was afforded a VA orthopedic examination in December 1993. He gave a 17 year history of back pain and history of left knee pain since an injury in 1976. However, there were no references to the post-service knee injuries, nor the extensive treatment therefor. It was noted that the veteran had undergone an anterior cruciate ligament reconstruction. Upon examination of the lumbar spine, range of motion was normal. Neurovascular examination was normal. Deep tendon reflexes, strength, and straight leg raising were negative. Examination of the left knee demonstrated full range of motion. There was zero degrees in extension and 120 degrees in flexion. There was no ligamentous instability. Lackman's test and drawer test were negative. There was slight tibia-femoral crepitus. The diagnoses was musculo- skeletal back strain and status post left knee anterior cruciate ligament reconstruction. X-rays of the left knee revealed evidence of osteoarthritis. The examiner did not find it necessary to order an X-ray of the back. The veteran was afforded a VA orthopedic examination in November 1996 to determine the degree of severity of the veteran's left knee disability, and to specifically include the examiner's comments regarding the degree of the veteran's functional loss in conformance with the holding of the U.S. Court of Appeals for Veterans Claims (Court) in DeLuca v. Brown, 8 Vet. App. 202 (1995). The veteran complained of constant pain in his left knee which locks, swells, and gives out. On examination, there was a 6 inch healed incision of the anterior surface of the left knee. There was full range of motion and stability, however, the last 15 degrees of flexion was slightly uncomfortable. There was no positive drawer sign. There was no swelling. There was no measurable atrophy of the thigh muscle on the left as compared with the right. The veteran could do a half squat and come back up. He could walk on his toes and heels although he had a slight balance problem. The diagnosis was status post reconstruction of the anterior cruciate ligament of the left knee. The examiner commented that he could add nothing further to help with the DeLuca memorandum and that any further opinion would be purely speculative. II. Analysis A. Service connection for a low back disorder and for a right knee disorder The threshold question to be answered is whether the veteran has presented evidence of a well-grounded claim, that is, a claim which is plausible. If he has not presented a well- grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim because such development would be futile. 38 U.S.C.A. § 5107(a); Murphy v. Derwinksi, 1 Vet. App. 78 (1990). As will be explained below, the Board finds that neither his claim for a back disorder nor right knee disorder is well-grounded. Under the applicable criteria, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991). The U. S. Court of Appeals for Veterans Claims (Court) has held that evidentiary assertions on or accompanying a claim for VA benefits must be accepted as true for the purpose of determining that the claim is well-grounded. Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet.App. 492; Tirpak v. Derwinski, 2 Vet. App. 609 (1992); King v. Brown, 5 Vet. App. 19 (1993). In order for a claim to be well-grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). Low back disorder In addition to the general standard set forth in Caluza v. Brown, chronicity and continuity standards can also establish a well-grounded claim. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). The chronicity standard is established by competent evidence of the existence of a chronic disease in service or during an applicable presumptive period; and present manifestations of the same chronic disease. The continuity standard is established by medical evidence of a current disability; evidence that a condition was noted in service or during a presumption period; evidence of post- service continuity of symptomatology; and medical, or in some circumstances, lay evidence of a nexus between the present disability and the post- service symptomatology. This type of lay evidence, for purposes of well groundedness, will be presumed credible when it involves symptomatology that is not inherently incredible or beyond the competence of a lay person to observe. Savage, supra. The veteran alleges that he developed a back disorder in service which required treatment and that he continues to experience residuals of that disability. As illustrated above, the evidence of record clearly reveals numerous complaints, treatment, and diagnoses of back disorder in service. Such evidence clearly demonstrates the presence of a back disorder in service. The evidence further establishes that the veteran currently suffers from a musculo-skeletal back strain as diagnosed by a VA examiner in December 1993, albeit that such diagnosis was based solely on the veteran's subjective complaints, inasmuch as orthopedic examination was entirely negative. While the veteran provided a 17 year history of back pain during that examination, a review of the numerous medical reports compiled subsequent to service does not show a continuity of symptoms, nor did the VA examiner link the current back strain to military service. The absence of competent medical evidence of a nexus, or link, between the veteran's back disorder and his service, compels the conclusion that he has not submitted a well-grounded claim. The appeal as to this issue is denied. Right Knee Disorder In this case, there is current evidence of a right knee disorder as evidenced by private treatment records dated in May 1993 which show a right knee contusion and possibly fracture, as demonstrated on X-ray. Thus, the first Caluza requirement to establish a well-grounded claim is met. The second Caluza requirement is also met since the veteran is competent to state that he was treated for right knee symptoms in service and, moreover, service medical records reveal treatment on several occasions for right knee disorder. However, there is no medical opinion of record linking the current right knee disorder to service. Thus, the third Caluza requirement is not met. The veteran, as a layperson, is not competent to make such an assertion. See Espiritu. Furthermore, the Board notes that the private treatment records showing evidence of a current right knee disorder was the result of an injury he sustained in May 1993. When he was treated at that time, he did not report a history of earlier right knee injury or symptoms of service onset; rather he denied previous injury. Despite the fact that the veteran was seen on numerous occasions post-service for left knee symptoms, at no time did he voice any complaints relating to his right knee. Therefore, absent competent medical evidence of a nexus, or link, between the veteran's right knee disorder to service, the veteran has not submitted a well-grounded claim and the appeal as to this issue is denied. B. Increased Rating for Left Knee Disorder The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a). A claim for an increased evaluation is well-grounded if he asserts that a condition for which service connection has been granted has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In this case, the veteran has asserted that his left knee disorder is worse than currently evaluated, and he has thus stated a well-grounded claim. Under the applicable criteria, 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. The VA has a duty to acknowledge and consider all regulations which are potentially applicable through assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. §§ 4.1, 4.2, 4.7, and 4.10. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report, and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 594. In addition, 38 C.F.R. § 4.40 requires consideration of functional disability due to pain and weakness. As regards the joints, 38 C.F.R. § 4.45 notes that the factors of disability reside in reductions of their normal excursion of movements in different planes. The considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity or atrophy of disuse, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. 38 C.F.R. § 4.59 provides that, with any form of arthritis, painful motion is an important factor of disability. The intention of the VA rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to a healed injury, as entitled to at least the minimum compensable rating for the joints. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing. When a veteran alleges he suffers pain due to a service- connected musculoskeletal disability in which the degree of disability is based on consideration of limitation of motion, an examiner's report should assess the degree of functional loss, if any, due to pain, weakened movement, excess fatigability or incoordination. See DeLuca. The Board has considered 38 C.F.R. § 4.71(a), Diagnostic Codes 5257, 5260, and 5261. Under Diagnostic Code 5257, a slight impairment of the knee warrants a 10 percent rating. Limitation of flexion of the knee to 45 degrees is accorded a 10 percent rating under Diagnostic Code 5260. Limitation of extension of the knee to 10 degrees warrants a 10 percent rating under Diagnostic Code 5261. Under the same Diagnostic Codes a 20 percent rating is provided for moderate impairment of the knee, consisting of recurrent subluxation or lateral instability, for limitation of flexion of the knee to 30 degrees, or limitation of extension of the knee to 15 degrees. Further, absent evidence of ankylosis or impairment of the tibia and fibula, Diagnostic Codes 5256 and 5262 are not for consideration and application. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (1999). A review of the evidence reveals that a rating in excess of 10 percent under Diagnostic Code 5257 for the veteran's left knee disorder is not shown on current VA examination. The evidence of record reveals only a slight impairment of the left knee. November 1996 VA examination findings show that there was full range of motion of the left knee although the last 15 degrees was slightly uncomfortable. There was no positive drawer sign or swelling. As such, an evaluation in excess of 10 percent for the veteran's left knee disorder is not warranted. In addition, the Board notes that in the report of the November 1996 VA examination, the examiner noted that he could not comment further on the veteran's left knee with respect to the requirements set forth in DeLuca and that any further opinion would be purely speculative. In this regard, the examination findings show that there was full range of motion of the left knee with no swelling. The veteran's complaints of pain are addressed by the 10 percent evaluation assigned to his left knee. Thus, the Board finds that the issue of functional loss due to left knee pain, incoordination, weakness, or fatigability has been considered and addressed. In a July 1997 opinion, VA's General Counsel concluded that a claimant who had arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, and that evaluation of knee dysfunction under both codes would not amount to pyramiding under 38 C.F.R. § 4.14. However, it was noted that a separate rating must be based on additional disability. Where a knee disorder is already rated under Diagnostic Code 5257, the veteran must also exhibit limitation of motion under Diagnostic Codes 5260 or 5261 in order to obtain the separate rating for arthritis. However, if the veteran did not at least meet the criteria for a zero percent rating under either of these codes, there was no additional disability for which a rating may be assigned. VAOPGCPREC 23-97, July 1, 1997. In this case, while the veteran has evidence of arthritis of the knee, he does not have any compensable limitation of knee motion. Hence a separate rating is not in order. Furthermore, the Board has reviewed the entire evidence of record and finds that the 10 percent rating assigned by the RO for the left knee disorder reflects the most disabling this disorder has been since the veteran filed his claim for service connection, which is the beginning of the appeal period. Thus, the Board has concluded that staged ratings for this disorder is not warranted. Fenderson v. West, 12 Vet. App. 119 (1999). ORDER 1. A well-grounded claim not having been submitted, entitlement to service connection for a back disorder, is denied. 2. A well-grounded claim not having been submitted, entitlement to service connection for a right knee disorder, is denied. 3. An increased rating for a left knee disorder in excess of 10 percent is denied. N. R. ROBIN Member, Board of Veterans' Appeals