Citation Nr: 0007004 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-14 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Propriety of the initial 0 percent (noncompensable) evaluation assigned for right knee patellofemoral pain syndrome. 2. Propriety of the initial 0 percent (noncompensable) evaluation assigned for left knee patellofemoral pain syndrome. ATTORNEY FOR THE BOARD Peter C. Lenart, Associate Counsel INTRODUCTION The veteran served on active duty in the military form May 1984 to May 1997. In January 1998, the Department of Veterans Affairs (VA) Regional Office (RO) granted the veteran's service connection claims for right and left knee patellofemoral pain syndrome, and assigned a noncompensable (0 percent) rating for each knee. At the same time, the RO adjudicated 6 other service connection claims for the veteran. The veteran timely appealed only the noncompensable ratings for his right and left knee disabilities to the Board of Veterans' Appeals (Board). As the veteran has disagreed with the initial evaluations assigned, the issues have been characterized accordingly. Fenderson v. West, 12 Vet. App. 119, 126 (1999). FINDINGS OF FACT Since service, the veteran's knees have been symmetrical and non-tender with no patella grind and no tenderness of the patella over the knees; both knees are stable to stress; the veteran has a full range of motion; his functional impairment includes pain upon motion, during prolonged sitting and standing, and while climbing stairs. CONCLUSIONS OF LAW 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The assignment of an initial noncompensable evaluation for right knee patellofemoral pain syndrome was improper, and the criteria for a higher, 10 percent evaluation, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (1999). 3. The assignment of an initial noncompensable evaluation for left knee patellofemoral pain syndrome was improper, and the criteria for a higher, 10 percent evaluation, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's service medical records (SMRs) reveal that he experienced soreness in both knees after running. This condition was noted as early as 1993 when the veteran underwent an orthopedic examination. He was treated with physical therapy and with aggressive non-steroidal anti- inflamatories. The veteran's January 1997 Medical Board examination found no patellar grind of the knees, and x-rays were negative for arthritis; he had full range of motion and no signs of instability. The veteran received a medical discharge largely due to the much greater difficulty that he had experienced in his hips. The veteran filed a VA compensation claim in April 1997, and he underwent his initial VA examination in November 1997. At the time, he stated that he had lost no time from work during the past 12 months due to disability. He reported his history of pain in the hips, upper legs, and knees. In addition, he indicated that he experienced a popping sound in both knees upon extension. The veteran also reported soreness in his knees after running. The examiner found the veteran's knees to be symmetrical, non-tender, with no patella grind, and no tenderness of the patella over the knee. The examiner also indicated that the veteran did not have any instability, as his knees were stable to stress testing. The examiner noted that the veteran possessed a full range of motion, to 140 degrees, bilaterally. The examiner also noted that the veteran had powerful, equal quadriceps. The examiner found no weakness upon repetitive motion; however, on repetitive extension beyond 20 to 30 degrees, the examiner noted the veteran's complaints of pain upon running, and stair climbing. The examiner also noted that the veteran did not have significant symptoms more than once or twice a month. The examiner diagnosed the veteran with patellofemoral syndrome of both knees. In January 1998, following receipt and review of the November 1997 examination report, the RO assigned a 0 percent evaluation for each knee, in part, on the basis that there was no limitation of motion or arthritis. In February 1998, the veteran submitted a lay statement from his wife in which she described the pain and difficulties related to her husband's knees. The veteran's wife indicated that the veteran has complaints of knee pain 4-5 times a week. She indicated that he had to stop and stretch while on long drives, and even with that he experiences great discomfort. She indicated that the veteran relies upon daily hot baths to attempt to alleviate his joint pain. She also indicated that the veteran has had to eliminate many physical activities from his life. The veteran submitted statements in February and March 1998 and described his knee pain as commensurate with his hip pain, for which he had been granted a compensable rating. In addition, on his August 1998 VA Form 9, the veteran described experiencing a constant, aching pain in both knees that intensifies during physical activities such as prolonged sitting and standing, and in climbing stairs. II. Legal Analysis As a preliminary matter, the Board finds that the veteran's claims for higher evaluations for his left and right knee conditions are plausible and capable of substantiation and is therefore, well grounded within the meaning of 38 U.S.C.A. § 5107(a). See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The Board also is satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required in order to comply with the duty to assist. Id. Disability evaluations are determined by comparing a veteran's present symptom-atology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, all reasonable doubt has been resolved in the veteran's favor. See 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Before proceeding with its analysis of the veteran's claim, the Board finds that some discussion of the Fenderson case is warranted. In that decision, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case in which the veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. In the former case, the Court held the rule of Francisco v. Brown (7 Vet. App. 55, 58 (1994)), that the current level of disability is of primary importance when assessing an increased rating claim, applies. In the latter case, however, where, as here, the veteran has expressed dissatisfaction with the assignment of an initial rating, the Francisco rule does not apply; rather, the VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as "staged rating." Here, the RO did not characterize either issue as involving the propriety of the initial evaluation assigned, or explicitly consider whether a "staged rating" was appropriate. However, there is only the report of a single VA examination upon which to evaluate the claims. Hence, there is no basis for consideration of a "staged rating," and the Board's characterization of the issues consistent with the Fenderson decision does not result in an analysis different than that employed by the RO. The veteran's bilateral patellofemoral syndrome is properly evaluated according to the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5257 for "other" impairment of the knee, which includes recurrent subluxation or lateral instability as diagnostic criteria. If these symptoms cause slight impairment in the knee a 10 percent rating is warranted. If the impairment in the knee is moderate in nature, then a 20 percent rating is to be assigned. A 30 percent rating is warranted if the impairment is severe. The RO rated the veteran's disability under diagnostic codes 5099 and 5019 (for bursitis), as this condition is rated analogous to limitation of motion for arthritis. As there is no clinical evidence of arthritis in either knee, the Board has utilized the more appropriate diagnostic code noted above. See Butts v. Brown, 5 Vet.App. 532, 538 (1993); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Based upon its review of the VA examination of record, the RO found that the veteran had a full range of motion in his knees. Accordingly, the RO assigned noncompensable ratings. Following its own review of the evidence in light of the above rating criteria, the Board determines that a 10 percent rating is assignable for each knee based upon the veteran's functional impairment. Objectively, medical evidence does not show significant orthopedic disability manifested by limitation of motion. The veteran's range of motion is from 0 to 140 degrees, which indicates the absence of any limitation of motion (see 38 C.F.R. 4.71, Plate II, indicating that "standard" range of left knee motion, extension to flexion, is from 0 to 140 degrees). The veteran's knees were noted to be symmetrical and non-tender. There was no patella grind and no tenderness of the patella over the knees. In addition, the examiner determined that the veteran's knees were stable to stress. If, as here, the disability at issue is of a musculoskeletal nature or origin, then VA may, in addition to applying the regular schedular criteria, consider granting a higher rating for functional impairment caused by pain, limited or excess movement, weakness, excess fatigability, or incoordination- assuming these factors are not already contemplated by the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). In this case, on VA examination in November 1997, the veteran complained of experiencing daily intermittent pain. Moreover, the VA examiner opined that the veteran also experiences fatigability, lack of endurance, and weakness associated with the left knee, resulting in additional functional loss during flare-ups. Hence, despite the lack of many significant clinical findings, the Board finds that, with consideration of functional loss, due to the factors noted above, in addition to that shown objectively, the veteran's right and left knee condition results in overall slight impairment, and supports the assignment of a 10 percent disability evaluation for each knee. There is no basis for assignment of an evaluation higher than 10 percent for each knee under Diagnostic Code 5257. The veteran's pain, fatigability, and weakness are not shown to be so debilitating as to warrant a 20 percent rating under this diagnostic code. There is no evidence that he requires knee braces or prescription medication, nor has he lost time from work. There is no indication that the veteran experiences disability, or disability comparable to, severe recurrent subluxation or instability so as to warrant a 30 percent evaluation under Diagnostic Code 5257. As noted above, the examiner found the veteran's knees to be stable to stress during the November 1997 examination. There also is no basis for assignment of a higher evaluation under any other potentially applicable diagnostic code. Even considering the veteran's complaints of pain and the other indicia of functional loss during flare-ups, there is no indication that the veteran experiences disability, or disability comparable to ankylosis of the knee, flexion limited to 15 degrees, extension limited to 20 degrees or more; hence, a higher disability evaluation is not assignable under Diagnostic Codes 5256, 5260, 5261 or 5262, respectively. Moreover, although the November 1997 examiner diagnosed patellofemoral syndrome, there is no evidence that the veteran has arthritis in either one of his knees. Hence, there is no basis for assignment of separate evaluations for arthritis (resulting in limitation of motion or painful motion) and instability. See VAOGCPREC 9-98 (1998); VAOGCPREC 23-97 (1997). Accordingly, based on the medical evidence available in this case, the Board finds that the initial noncompensable ratings for right and left patellofemoral syndrome were not appropriate, and that the evidence of pain and functional impairment warrants a disability evaluation of 10 percent for each knee. In reaching these conclusions, the Board applied the benefit-of-the-doubt rule. See 38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The above determinations are based on application of the pertinent provisions of the Rating Schedule. Additionally, however, the Board notes that there is no indication that the schedular criteria, as applied in the instant case with consideration of the DeLuca factors, as appropriate, are inadequate to evaluate either of the veteran's right and left knee conditions. For example, there has been no showing that either has caused marked interference with his employment (i.e., beyond that contemplated in the assigned evaluation), necessitated frequent periods of hospitalization, or has otherwise rendered impracticable the application of the regular schedular standards. In the absence of evidence of such factors as those indicated above, the Board is not required to remand either of the issues on appeal to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1995); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER As the initial 0 percent evaluation assigned for right knee patellofemoral syndrome was not proper, a higher evaluation of 10 percent is granted, subject to the laws and regulations governing the payment of VA monetary benefits. As the initial 0 percent evaluation assigned for left knee patellofemoral syndrome was not proper, a higher evaluation of 10 percent is granted, subject to the laws and regulations governing the payment of VA monetary benefits. N. R. ROBIN Member, Board of Veterans' Appeals