BVA9507420 DOCKET NO. 93-07 180 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE 1. Entitlement to an increased evaluation for chronic low back strain, rated 10 percent disabling. 2. Entitlement to an increased rating for postoperative residuals, chondromalacia of the right knee, rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from August 1973 to December 1977. This is an appeal from an April 1991 rating action by the Department of Veterans Affairs (VA) Regional Office, Milwaukee, Wisconsin, which confirmed and continued 10 percent evaluations for the veteran's low back and right knee disabilities. Correspondence received from the veteran indicates that he wishes to pursue the issue of service connection for a left knee disability on a secondary basis. This issue is referred to the regional office for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that an increased evaluation should be assigned for his back disability since he has constant pain involving his low back and also muscle spasm. He takes various types of medications that make his back pain manageable. He is limited in lifting, walking, sitting and standing as a result of his back condition. He has also missed considerable time from work as a result of the back disability. He also has pain involving his knee and must use a cane or crutches for his knee problem. He has lateral instability and his knee buckles to the side without warning. If he does not have his cane or crutches, he goes down. He also wears a knee brace. He cannot stand for any prolonged period of time because of the knee. His walking is also limited because of his knee disability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence supports the veteran's claim for increased evaluations to 20 percent for his back and right knee disabilities. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office. 2. The veteran's low back disability is manifested by limitation of motion, tenderness, occasional muscle spasms, pain, and need for anti-inflammatory medication. 3. The veteran's right knee condition is manifested by tenderness to pressure, decreased range of motion, pain, and a need for anti-inflammatory medication and use of a brace. CONCLUSIONS OF LAW 1. An evaluation of 20 percent for the veteran's low back disability is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § Part 4, Codes 5292, 5295 (1994). 2. An evaluation of 20 percent for the veteran's right knee disability is warranted. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. § Part 4, Codes 5257, 5260, 5261 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that it has found the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that he has presented claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed. The veteran's service medical records reflect that he was seen on various occasions with complaints regarding back pain. The impressions included lumbosacral strain. He also reported problems with his knees. When the veteran was examined by the VA in February 1978, there was mild tenderness of the paraspinal muscles in the upper dorsal and lumbar areas. There was also mild dorsal and lumbar rotary scoliosis. There was no restriction of back movements. During repetitive movements with the right knee, there were subpatellar clicking and grating crepitus. There was mild pain on grinding the right patella against the femoral condyles. The diagnoses included mild dorsal and lumbar scoliosis with chronic dorsal and lumbosacral strain and chondromalacia of the right knee. By rating action dated in March 1978, service connection was established for chronic dorsal and lumbosacral strain and chondromalacia of the right knee, each rated 10 percent disabling. When the veteran was examined by the VA in June 1981, the thoracic spine was normal. There was no paravertebral muscle spasm. The veteran could flex to 100 degrees, extend to 25 degrees, laterally flex to 35 degrees and rotate to 45 degrees. Both knees extended fully. The right knee flexed to 122 degrees and the left to 121 degrees. The diagnoses included normal back and right knee at this time. By rating action dated in July 1981, the 10 percent evaluation for the veteran's back condition was confirmed and continued and the evaluation for the right knee condition was reduced from 10 percent to no percent. A report by the St. Elizabeth's Hospital reflects the veteran's treatment in November and December 1981. An arthroscopy and plica resection of the right knee were performed. In an April 1982 rating action, the evaluation for the veteran's right knee condition was increased to 10 percent. The 10 percent evaluation for his back condition was confirmed and continued. In February 1991 the veteran submitted a claim for an increased evaluation for his back and knee conditions. He submitted a private X-ray study dated in December 1990 reflecting that Levolyst and L5-S1 osteoarthritis were present. The veteran was examined by the VA in March 1991. He reported that after the 1981 arthroscopic right knee surgery he had had a second operation in 1990 and had undergone a lateral release. He stated that since the latter operation his knee had felt more stable. He related that he often used a brace on the knee. He stated that at times he still had swelling and pain involving the knee and used a cane to stabilize himself. He also had had chronic low and mid back pain since 1973. Examination of the right knee showed generalized swelling and distortion. Old arthroscopic scars were seen. Pressure over the lower patella produced intense pain. There was a full range of extension of the leg with great difficulty. No crepitation was palpable. The examination of the back showed the spine to be midline with tenderness beginning in the lower thoracic area and extending down through the lumbar area. There was also tenderness to deep pressure over the right paralumbar musculature. With difficulty the veteran was able to flex his lower back forward 60 degrees at the hips while using a cane for stabilization. An X-ray study of the knees was negative except for retropatellar joint space narrowing. A March 1991 statement by a physician for the Elmbrook Memorial Hospital reflects that examination of the knees showed evidence of synovial thickening and crepitus over the right knee. The examiner did not notice any significant mediolateral instability. It was indicated that there was diffuse tenderness in the lumbosacral region on the right side, especially at the L5-S1 level. The impressions included degenerative joint disease of both knees, shoulders and lumbosacral spine, chronic chondromalacia of the patella and chronic lumbosacral strain. The veteran testified at a hearing at the regional office in October 1992. He provided information regarding his back and knee conditions that was similar to that set forth in the contentions portion of this decision. In a March 1992 statement, Carl F. Moyer, M.D., reflected that the veteran indicated some tenderness on deep palpation in the lumbosacral region. It was stated that lumbar mobility was moderately restricted. It was indicated that there was no palpable muscle spasm. There was no swelling of the right knee. There was no erythema or increased local temperature about the right knee. There was minimal joint line tenderness and no effusion. It was indicated that there was 125 degrees of flexion of the right knee. The veteran was again examined by the VA in November 1992. It was indicated that for a long time he had worn a brace on his right knee. He stated that without it ambulation was very difficult. He also used a cane for walking. He reported chronic pain in the right knee. He used a nonsteroidal anti-inflammatory drug and also took other medication when the pain was severe. With respect to the low back, the veteran said he had experienced increasing pain and muscle spasms as well. Examination of the right knee showed no distinct swelling. There was marked tenderness to pressure over both the lower and upper patella. The veteran was able to extend the right leg at the knee to 0 degrees and flex the knee to 110 degrees. No crepitation was palpable. Diagnoses were made of postoperative status chondromalacia of the right knee with residual pain and instability and post-traumatic ligament damage of the right knee. On examination of the spine there was moderate tenderness in the midlumbar area. There was marked tenderness to pressure over the right paralumbar musculature. The veteran was unable to go through a full range of motion of the low back due to disabilities of his right knee. An X-ray study of the lumbar spine was normal. The diagnosis was chronic low back strain. In July 1993 additional medical evidence was submitted on behalf of the veteran. It was indicated that the veteran waived initial consideration of the evidence by the regional office. The medical evidence included a December 1992 statement by Gerald L. Ignace, M.D., which reflected that the veteran was having persistent right knee pain that was causing him significant discomfort. Dr. Ignace indicated that because of the discomfort he had advised the veteran to limit his driving to that which was absolutely necessary. The medical records also included a January 1993 statement by Dr. Moyer who indicated that he had seen the veteran for problems with his back and right knee. He stated that the veteran had chondromalacia of the patella of the right knee which did not prevent him from driving but would be aggravated if he were to drive a long distance, that is, greater than 50 miles at a time or if he were to do a half hour or more of city driving with frequent starts and stops. He noted that the veteran was currently taking a number of medications for that and other problems. A January 1993 statement by Dr. Ignace reflected that the veteran had undergone physical therapy until December 1992. The veteran persisted in having some difficulty and was limited in his ability to ambulate and drive long distances. Slight limitation of motion of the lumbar segment of the spine warrants a 10 percent evaluation. A 20 percent evaluation requires moderate limitation of motion. 38 C.F.R. § Part 4, Code 5292. A 10 percent evaluation is warranted for lumbosacral strain where there is characteristic pain on motion. A 20 percent evaluation requires muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. 38 C.F.R. § Part 4, Code 5295. Slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment. 38 C.F.R.§ Part 4, Code 5257. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). In this particular case, the evidence of record reflects that the veteran has some limitation of motion of his lumbar spine which was described as moderate in degree by Dr. Moyer on his March 1992 report. There was also diminished range of motion of the lumbar spine on the November 1992 VA examination although the extent of the limitation of motion was not described in detail. The November 1992 VA examination reflected that there was moderate tenderness in the midlumbar area and marked tenderness to pressure over the right paralumbar musculature. Muscle spasm was not reported by the examiner at the time of that examination although the veteran has indicated that he does experience lumbar muscle spasm. The veteran also reports chronic pain involving his lumbar spine. In the Board's judgment, the current manifestations of the veteran's low back disability are of such a nature and extent so as to warrant a 20 percent evaluation under the applicable rating schedule provisions. Severe limitation of motion or other manifestations warranting the next higher evaluation of 40 percent have not been demonstrated. 38 C.F.R. § Part 4, Codes 5292, 5295. With regard to the veteran's right knee condition, he has indicated that he wears a brace on the knee and utilizes a cane or crutches for ambulation. He has reported that the knee is unstable and that without the cane or crutches he is subject to falls. He also reports pain involving his knee. The November 1992 VA examination did not reflect any distinct swelling involving the knee; however, there was marked tenderness to pressure over both the lower and upper patella. There was also some restriction of motion of the knee. The Board believes that the veteran's right knee condition is productive of moderate symptomatology and as such a 20 percent evaluation is warranted for that condition under the provisions of Diagnostic Code 5257. Significant limitation of extension or flexion or manifestations consistent with severe functional impairment warranting a 30 percent evaluation have not been shown. 38 C.F.R. § Part 4, Codes 5257, 5260, 5261. In arriving at its decisions in this case, the Board has resolved all doubt in favor of the veteran. 38 U.S.C.A. § 5107. In reaching its decision, the Board has considered the complete history of the disablities in question as well as the current clinical manifestations and the effect the disabilities may have on the earning capacity of the veteran. 38 C.F.R. 4.1, 4.2, 4.16 (1994). The functional impairment which can be attributed to pain or weakness has been taken into account. 38 C.F.R. 4.40 (1994). Further, the Board finds that in this case the disability pictures are not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that the service-connected low back or right knee disability has caused marked interference with employment or necessitated frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1)(1994). The criteria for an evaluations greater than 20 percent have not been met or approximated. 38 C.F.R. § 4.7. ORDER Entitlement to increased evaluations for a low back disability and a right knee disability is established. The benefits sought on appeal are granted, subject to the law and regulations governing the payment of monetary benefits. WAYNE M. BRAEUER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.