Citation Nr: 0004086 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 96-43 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an increased evaluation for service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from September 1975 to November 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 1996 rating decision from the San Diego, California, Department of Veterans Affairs (VA) Regional Office (RO), which continued a 20 percent evaluation for service-connected left knee, status post arthrotomy, with non-healing wound and pedicle flaps and skin grafts. By rating decision in April 1999, an additional 10 percent evaluation was assigned for loss of range of motion of the left knee, effective from July 1, 1997. The Board notes that the veteran timely filed a notice of disagreement and substantive appeal on the issue of service connection for a left total hip replacement, as secondary to the service-connected left knee disability. By rating decision in April 1999, the RO granted service connection for left total hip replacement for degenerative changes with a 100 percent evaluation, effective from November 1, 1995, and a 50 percent evaluation, effective from January 1, 1997. The April 1999 decision represented a full grant of benefits sought with respect to the veteran's claim of entitlement to service connection for left total hip replacement. As the veteran did not express disagreement with the "down-stream" issue of the percentage evaluation assigned, such matter is not before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030, 1032 (Fed. Cir. 1997); see also Holland v. Gober, 10 Vet. App. 433, 435 (1997) (per curiam). The Board further notes that the veteran's representative, in a VA Form 646 dated in November 1999, stated that the veteran verbally indicated that he wished to withdraw his appeal, but that no written confirmation had been received by the representative. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(b) (1999). As the records contains no written confirmation of the veteran's intent to withdraw the instant claim, the Board must proceed with adjudication of the claim. FINDING OF FACT The veteran's service-connected left knee disability is manifested by limitation of motion, constant pain, crepitation, significant functional loss, and instability, necessitating the use of a cane and/or brace for ambulation. CONCLUSIONS OF LAW 1. A 20 percent evaluation for service-connected left knee limitation of motion, including functional loss and pain, is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261 (1999). 2. The criteria for an evaluation in excess of 20 percent for service-connected status post arthrotomy of the left knee with instability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Factual Background The veteran's service medical records note that he was stung in the left knee by a stingray, prior to entrance onto active duty. In July 1976 a foreign body was removed from the left knee, secondary to the earlier sting injury. The veteran filed an initial claim for VA benefits for a left knee disorder in November 1976. By rating decision in June 1977, the RO granted service connection for status post arthrotomy of the left knee with a noncompensable evaluation, effective from November 16, 1976. By rating decision in May 1981, the RO granted an increased evaluation of 10 percent for service- connected left knee disability, effective from March 1, 1981. The veteran suffered a work-related injury to his left knee in July 1983, resulting in an acute internal derangement of the knee. The physician noted that the veteran should be able to return to his usual and customary employment without restriction, after appropriate physical therapy and rehabilitation of approximately six weeks. By rating decision in January 1991, the RO granted an increased evaluation of 20 percent for status post arthrotomy of the left knee, with non-healing wound and pedicle flap and skin graft, effective from November 8, 1990. The Board notes that the veteran underwent numerous hospitalizations and surgical procedures for his chronic left knee wound. The record contains numerous VA medical treatment records noting complaints of chronic left lower extremity pain. A VA examination was conducted in April 1992. The examiner noted no swelling or deformity. Crepitus on motion was shown in both knees and instability was noted on the left. Range of motion testing of the left knee revealed flexion of 90 degrees and extension of 10 degrees. The examiner reported that the veteran walked with a limp and had increased pain on attempting to kneel or squat, pain with stair climbing, and generally constant pain of the left knee. The examiner provided diagnoses of status post infection of the left knee with multiple operations for incision and drainage, and status post mediolateral meniscectomies repair of the collateral ligaments, with limitation of motion of the knee, chronic pain, status post skin grafting, and no present infection. A VA examination was conducted in January 1996. The veteran carried a cane and required usee of a brace for his left knee. The examiner noted that the veteran walked with a marked limp of the left leg. All scars of the knee were well healed, not keloidal, did not limit function, and were not tender to the touch. No swelling or deformity of the left knee was noted. Crepitus with patella compression was shown on physical examination. The left knee exhibited instability. Range of motion testing of the left knee revealed flexion of 90 degrees and extension of 0 degrees. X-ray examination revealed fusion of an ossicle to the medial femoral condyle and narrowing of the patello-femoral compartment, which raised the question of chondromalacia patella. The examiner provided diagnoses of: 1) Status post stingray penetration with infection of the left knee with keloid formation; 2) Multiple operations with removal of both menisci and repair of lateral collateral ligaments with instability of the left knee with limitation of range of motion and requiring a brace and a cane; and 3) Quadriceps and calf atrophy on the left. A VA examination was conducted in August 1998. The veteran reported constant pain in the left knee and stated that he needed to wear a knee brace to provide stability to the knee. No swelling, edema, subluxation, or ligamentous laxity was noted. The examiner stated that the slightest and gentlest passive manipulation of the knee was quite painful. A slight degree of subpatellar crepitation was present. The veteran reported pain throughout active flexion-extension. Range of motion testing revealed flexion of 120 degrees, and extension of 0 degrees. The examiner stated that the veteran appeared to have a rather significant disability with rather significant findings including a number of different surgical scars on the knee. The veteran had very definite limitation of motion with atrophy of thigh and calf musculature and the examiner suspected a significant degree of degenerative arthritis, secondary to intra-articular infection and multiple surgical procedures. The examiner stated that the veteran appeared to have rather significant functional impairment with regard to his ability to ambulate or even stand in one position for any length of time and was impaired from any from of deep knee bending, stooping, squatting, kneeling, crawling, and jumping. II. Analysis In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In the instant case, there is no indication that there are additional records, which have not been obtained and which would be pertinent to the present claims. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2, which require the evaluation of the complete medical history of the veteran's condition. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). In VAOPGCPREC 23-97, the General Counsel stated that when a knee disorder is rated under Diagnostic Code 5257 and a veteran also has limitation of knee motion which at least meets the criteria for a zero percent evaluation under Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, the General Counsel stated that if a veteran does not meet the criteria for a zero percent rating under either Diagnostic Code 5260 or 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997). The Board recognizes that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"), in DeLuca v. Brown, 8 Vet. App. 202 (1995), held that where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. 38 C.F.R. §§ 4.40, 4.45 (1999). The provisions contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination and impaired ability to execute skilled movement smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. Id. Under the Schedule, an evaluation in excess of 10 percent for limitation of leg flexion requires limitation to less than 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. An evaluation in excess of 10 percent for limitation of leg extension requires limitation to more than 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Recurrent subluxation or lateral instability of the knee is entitled to a rating of 20 percent for moderate impairment, and 30 percent for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The range of motion testing results, reported in the VA examinations in April 1992, January 1996, and August 1998 do not meet the Schedular criteria for an evaluation in excess of the 10 percent granted by the RO. However, the Board finds that the veteran's functional limitation is additionally disabling. The VA examiner in August 1998 stated that the veteran had a rather significant disability, including atrophy of the calf and thigh musculature. The examiner noted that the veteran had significant functional impairment in his ability to ambulate and stand. The veteran has a marked limp and requires the use of a cane and/or brace for walking or standing. Crepitus was noted on all examinations and the veteran has repeatedly reported severe pain with any motion of the knee. The Board finds that the veteran's symptomatology, including functional loss and pain, most closely approximates a 20 percent evaluation, for his limitation of motion of the left knee. Instability of the veteran's knee was noted on the VA examinations in April 1992 and January 1996. No instability, subluxation, or laxity was noted on the VA examination in August 1998. None of the VA examiners provided an opinion that the instability of the veteran's left knee was severe. The significant functional loss and pain, noted on VA examinations, has been considered separately in the evaluation for the veteran's limitation of left knee motion. The Board finds that the evidence preponderates against an evaluation in excess of 20 percent for instability of the left knee. Initially, the Board notes that the VA examination in August 1998 noted that X-ray examinations were to be performed and that such were reviewed, but the records of these X-ray examinations are not of record. Assuming, arguendo, that the X-ray examinations showed the degenerative arthritis, suspected by the VA examiner, the analysis under the Schedule would be the same. Degenerative arthritis is evaluated on the basis of limitation of motion under the appropriate diagnostic codes, with a minimum evaluation of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The veteran's disability has been evaluated on the basis of limitation of motion, and any further diagnosis of degenerative arthritis would not provide for an evaluation in excess of that found above. ORDER Entitlement to an evaluation of 20 percent for service- connected limitation of left knee motion, including functional loss and pain, is granted. Entitlement to an evaluation in excess of 20 percent for service-connected status post arthrotomy of the left knee with instability is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals