Citation Nr: 0001856 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 94-25 880 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to an increased rating for a service-connected right knee disability, currently rated 30 percent disabling. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Cooper, Associate Counsel INTRODUCTION The veteran served on active duty from July 1968 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1992 RO decision which denied an increase in a 10 percent rating for a right knee disability. In a February 1994 decision, the RO granted an increased evaluation for the right knee disability to 20 percent. A personal hearing at the RO was held in October 1998. In a March 1999 decision, the RO assigned separate ratings for the right knee disorder: 20 percent for right knee instability plus 10 percent for traumatic arthritis with limitation of motion. This resulted in the current combined rating of 30 percent for the right knee disability. The veteran has not indicated he is satisfied with this rating. Thus, the appeal for a higher rating continues. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT The veteran's right knee disability is manifested by moderate instability and traumatic arthritis with limited motion of extension to 3 degrees and flexion to 120 degrees. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for the veteran's right knee disability (20 percent for instability plus 10 percent for arthritis with limitation of motion) have not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999); 38 C.F.R. § 4.71a, Codes 5003, 5010, 5257, 5261, 5260 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran served on active duty in the Marine Corps from July 1968 to January 1969. A review of his service medical records reveals that in August 1968 he injured his right knee and thereafter received hospital treatement, until November 1968, for the condition. The final diagnosis was subchondral fracture, lateral epicondyle, right femur. On VA examination in March 1969, the diagnosis was internal derangement of the right knee with relaxation of medial collateral ligament. In an April 1969 decision, the RO granted service connection for internal derangement of the right knee, and such was rated 10 percent. In the years thereafter, the veteran received periodic treatment for right knee symptoms, including an arthroscopy with patella shaving in 1987. More recent VA treatment records, from 1991 to 1992, show that the veteran was treated for various ailments including right knee pain. The records reveal diagnoses of chronic right knee strain with traumatic and degenerative arthritis. Among the non-service-conected conditions treated were a postoperative left knee disorder, and bilateral groin hidradenitis suppurativa (for which the veteran had multiple skin grafts and which affected his ability to ambulate). In February 1992, the veteran filed a claim for an increased rating for his service-connected right knee disability. VA medical records from 1993 to 1994 show treatment for a variety of conditions, including right knee pain and arthritis. On VA examination in January 1994, the veteran reported that he fractured his right knee during active duty. He related that he had since had patella scrapings of the right knee. The veteran complained of daily pain in the right knee including discomfort at bedtime. He said that he had instability of the right knee, with falls, swelling, and locking sensation. It was noted that he wore a brace but did not use a cane and walked with an obvious right limp. A history of surgery on the left knee was also noted; the veteran said that his right knee problems were greater than his left knee problems. Examination of the right knee revealed well-healed arthroscopic portals, obvious swelling with mild effusion but no warmth. Right knee range of motion was -3 degrees of extension to 135 degrees of flexion, with fine patellofemoral crepitation compared to marked crepitation in the left. General pain and tenderness, anteriorly, medially, posteriorly, and laterally in the right knee was noted. The examiner indicated that stability of the right knee could not be determined due to guarding; however, there was no gross instability during maneuvers. The diagnoses were status post arthroscopic surgery of the right knee with synovitis and post-traumatic arthritis. January 1994 X-rays, ordered by the VA examiner, showed mild arthritic changes of the right knee. In a February 1994 decision, the RO granted an increased evaluation to 20 percent for the veteran's service-connected right knee disability. A VA clinical record dated in February 1994 relates that the veteran was unable to stand for prolonged periods secondary to knee pain. The diagnoses included rheumatoid arthritis of the knees, right greater than left. Also diagnosed were hidradenitis and chronic obstructive pulmonary disease (COPD). In a letter dated in July 1994, the veteran asserted that due to his injury, he had arthritis in his right knee which spread to other parts of his body. He said that his right knee was very painful. He claimed that his disability warranted a 70 percent rating. An April 1995 VA outpatient record notes that the veteran related that he just fell, when on his was to the nutrition clinic in the hospital, because his right knee gave way. It was noted he was a poor historian. Following examination, the assessment was status post fall with no apparent deficiencies. The veteran was advised to continue with his clinic appointments for that day. On VA examination in February 1997, the veteran reported that right knee pain was present day and night and had increased in the last two years. He complained of swelling and giving way but with no falls in the past two years. The postoperative left knee disability was also noted. He said that he took prescription pain medication every four hours due to right knee symptoms. Range of motion testing of the right knee revealed that extension lacked 5 degrees and flexion was to 120 degrees. Patellar femoral crepitation was constantly present, more on the left than the right. The right patella demonstrated +2 laxity. It was noted that the veteran had general tenderness about the right knee with mild effusion and periarticular fullness in the right knee. Mild varus was evident bilaterally. The diagnoses were status post arthroscopic surgery of the right knee, with residual arthrofibrosis, chronic synovitis, post-traumatic degenerative joint disease, and grade 2 sprain of the patella capsular supports. February 1997 X-rays of the right knee, ordered by the VA examiner, showed that the patella demonstrated small erosion along the medial aspect of the patella. Minimal narrowing of the medial compartment of the patella-femoral joint space was also shown. It was noted that, compared to the January 1994 study, there was no progression of the disease in the right knee and patella. Additional VA treatment records, from 1996 to 1998, show periodic complaints of right knee pain. Numerous non- service-connected ailments were also treated, including arthritis of multiple joints besides the right knee, hidradenitis, COPD, diabetes mellitus, hypertension, a possible cerebrovascular accident, and a psychiatric disorder. In July 1998, the veteran came to an emergency room, and was then hospitalized, for complaints of right- sided weakness, including of the right lower extremity; he was given a work-up for a possible cerebrovascular accident; the final diagnosis was a conversion reaction; and he was discharged with a cane. During an October 1998 RO hearing, the veteran testified that he took painkillers due to right knee pain and arthritis. He said that he wore a brace in order to stabilize his right knee. The veteran stated that he did exercises prescribed by his VA doctors to strengthen his leg muscles. On VA examination in November 1998, the veteran related that he had pain in both of his knees, with greater stiffness in the right knee. He said that right knee pain was constant, with or without activity. He stated that he took medication for pain and many arthritic joint problems. He noted that he used a cane intermittently. The veteran reported that his right knee buckled to the degree that he fell four months ago, requiring emergency room examination. He related that he also had swelling and locking of both knees. He said that weather and activity aggravated both knees. Examination of the right knee revealed well-healed arthroscopic portals, without linear scars. It was noted that he had tenderness about the anterolateral aspect of the knee, including the infrapatellar tendon and joint fissure. The examiner related that he had patella and mild medial laxity, with no anterior laxity. The right knee range of motion lacked extension by 3 degrees and had flexion to 120 degrees, with patella femoral crepitation. The examiner noted 3/4" atrophy of the right thigh and 1/4" atrophy of the right calf. The diagnoses were status post surgery, both knees, with post-traumatic degenerative joint disease, adhesive capsulitis, grade 2 sprain, both knees. Associated atrophy in the right lower extremity was also noted. The examiner commented that the veteran had a functional problem affecting both knees and resulting in fatigability, lack of endurance, and weakness. The examiner further opined that on his worst day, the veteran would exhibit further limitation of motion with extension lacking 10 degrees and flexion in the right knee restricted to 100 degrees, during such flare-ups. Uncoordinated motion occurred with flare-ups, demonstrated by the right knee buckling and subsequent falls. It was noted that the veteran had no pain-free motion. November 1998 X-rays, ordered by the VA examiner, revealed suspicious mild degenerative joint disease at the medial compartment of the right knee. Spurs at the posterior aspect of both patella were also noted. Degenerative joint disease was present at the patellofemoral joint on the right side. The diagnostic impression suggested that, compared to the February 1997 study, additional degenerative joint disease at the lateral patellofemoral joint on the right side was observed. Additional VA treatment records dated into 1999 primarily concern non-service-connected conditions. In a March 1999 decision, the RO continued the veteran's 20 percent evaluation for instability of the right knee; however, an additional 10 percent rating was assigned for traumatic arthritis with limitation of motion of the right knee. II. Analysis The veteran's claim for an increased rating for a right knee disability is well grounded, meaning plausible. The file shows that the RO has properly developed the evidence, and there is no further VA duty to assist the veteran with his claim. 38 U.S.C.A. § 5107(a). When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, it is the more recent evidence which is generally the most relevant in an increased rating claim, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. A 20 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5257 is provided for knee impairment with recurrent subluxation or lateral instability, when moderate in degree; a 30 percent evaluation is provided when the impairment is severe. Traumatic arthritis, substantiated by X-ray findings, is rated as degenerative arthritis; that is, on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion is noncompensable under a limitation-of- motion code, a 10 percent rating will be assigned for each major joint or group of minor joints affected by limitation of motion. 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, Codes 5003, 5010. Standard motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. A 0 percent rating is warranted for limitation of leg flexion when it is limited to 60 degrees, a 10 percent rating is warranted when it is limited to 45 degrees, and a 20 percent rating is warranted when it is limited to 30 degrees. 38 C.F.R. § 4.71a, Code 5260. A 0 percent rating is warranted when leg extension is limited to 5 degrees, a 10 percent rating is warranted when it is limited to 10 degrees, and a 20 percent rating is warranted when it is limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5261. The combined evaluation (see 38 C.F.R. § 4.25) for the veteran's right knee disability is 30 percent (20 percent for instability plus 10 percent for arthritis with limitation of motion). Medical records in recent years show some non-service- connected conditions which affect functioning of the right lower extremity, and such may not be considered when rating the service-connected right knee disability. 38 C.F.R. § 4.14. The records do note that the veteran has some right knee instability and he reportedly uses a knee brace and a cane at times (although it does not appear he uses the cane exclusively due to the right knee disorder). The most recent VA examination in 1998 shows the right knee has mild medial laxity, no anterior laxity, and some patella laxity. Atrophy of the right thigh and calf were also noted. The examiner opined that the veteran's uncoordinated motions during pain flare-ups could also result in buckling of the knee. The medical evidence as a whole shows no more than moderate recurrent subluxation or lateral instability of the right knee, and such is to be rated 20 percent under Code 5257. Severe instability, as required for the next higher rating of 30 percent under this code, is not demonstrated. In a March 1999 decision, the RO granted a separate 10 rating under for traumatic arthritis with limitation of motion of the right knee. Such is permitted by recent opinions of the VA's General Counsel. See VAOPGCPREC 9-98 and 23-97. With regard to arthritis of the right knee, several medical records show X-ray evidence of arthritis of the joint, and the most recent VA examination revealed extension to 3 degrees and flexion to 120 degrees. There is slight limitation motion of the right knee; normal range of knee motion is from 0 degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. The veteran's documented limitation of motion of the right knee would be rated noncompensable if strictly evaluated under the criteria of Codes 5260 and 5261. However, the presence of arthritis of the right knee with at least some limitation of motion supports a separate 10 percent rating under Codes 5003 and 5010. Even considering some additional limitation of motion due to pain on use or during flare-ups, there is no credible evidence that such would meet the criteria for the next higher rating under the limitation-of-motion codes. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the preponderance of the evidence is against the claim for an increase in the 30 percent rating for the right knee disability (20 percent for instability plus 10 percent for arthritis with limitation of motion). Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased rating for a right knee disability is denied. L.W. TOBIN Member, Board of Veterans' Appeals