Citation Nr: 0002655 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 96-23 377A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for postoperative residuals of a right knee meniscectomy, currently evaluated as 20 percent disabling. 2. Entitlement to an increased (compensable) evaluation for traumatic arthritis of the right knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from November 1959 to February 1964. This appeal comes before the Board of Veterans'Appeals (Board) on from a rating decision of April 1996 by the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). This case was previously before the Board in May 1998. At that time the Board remanded this case to the RO for additional development of the evidence and for due process purposes. At that time the Board requested that the RO consider whether a separate rating was warranted for arthritis of the right knee based on limitation of motion. In a September 1999 supplemental statement of the case, the RO indicated that a separate noncompensable rating would be warranted for limitation of motion of the right knee. Accordingly the issues are as stated on the title page of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The traumatic arthritis of the right knee is manifested by flexion to 90 degrees and extension to 0 degrees. 3. The service-connected right knee disability is productive of severe impairment. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for postoperative residuals, meniscectomy of the right knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, 4.7, Diagnostic Code 5257 (1999). 2. The criteria for a compensable rating for traumatic arthritis of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 5010, 5260, 5261 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran and his representative contend, in essence, that an increased rating for his service-connected right knee disability is warranted. The veteran in his substantive appeal, dated in June 1996, asserts that a 30 percent rating is warranted. He states that he has limitation of motion of the right knee and that the knee gives way on him without warning 3 to 4 times per month. Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. A claim that a disorder has become more severe is well grounded where the disorder was previously service-connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Disability ratings are based on schedular requirements, which reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155 (West 1991). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1999). In determining the level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2 (1999). Also, 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 (1999). It is essential, both in the examination and evaluation of disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1 (1999). However, 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 (1994). The RO, in March 1977, initially assigned a 10 percent rating for the veteran's service-connected right knee disability, characterized as "arthritis, right knee, and status post right meniscectomy," under Diagnostic Codes 5010-5259 of VA's Schedule for Rating Disabilities (Schedule). By means of a rating decision dated in June 1978, the RO increased the 10 percent to 20 percent, recharacterizing the disability as "meniscectomy of right knee with traumatic arthritis." Diagnostic Codes 5010-5257 were utilized as part of the June 1978 rating decision. The 20 percent evaluation assigned in 1978 has been effect since that time. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (1999); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, governing VA regulations, set forth at 38 C.F.R. § 4.40 (1999) provide for consideration of a functional impairment when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. § 4.40 (1999). In addition, it is pointed out that VA has specifically found that limitation of motion (arthritis) and instability contemplated under Diagnostic Code 5257 do not overlap, and, therefore, separate evaluations may be assigned. VAOPGCPREC 23-97 (July 1997). Diagnostic Code 5010 provides that arthritis due to trauma will be rated under Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis established by X- ray findings will be rated on the basis of limitation of motion. Diagnostic Code 5257 provides for the evaluation of other impairment of the knee, to include recurrent subluxation or lateral instability. When the disability is moderate, a rating of 20 percent is provided. When the disability is severe, a rating of 30 percent is provided. Diagnostic Code 5260 provides that a zero percent, or noncompensable, rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion is limited to 45 degrees; a 20 percent rating is warranted when flexion is limited to 30 degrees; and a 30 percent rating is warranted when flexion is limited to 15 degrees. Diagnostic Code 5261 provides that when extension of the knee is limited to 5 degrees, a noncompensable evaluation is for application. When extension is limited to 10 degrees, a 10 percent rating is warranted; when extension is limited to 15 degrees, a 20 percent rating is warranted; and when extension is limited to 20 degrees, a 30 percent rating is warranted. When extension is limited to 30 degrees, a 40 percent rating is warranted. Diagnostic Code 7805 provides that scars may be rated based on the limitation of motion of the part affected. A 10 percent rating is also warranted under Diagnostic Code 7803 for scars which are superficial, poorly nourished, with repeated ulceration. Under Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars, which are tender and painful on objective demonstration. The veteran was seen by a private physician in December 1993. The examination report shows that range of motion of the right knee was from 0 to 125 degrees. X-rays were noted to show severe degenerative arthritis of the right knee involving all three compartments. The veteran had a 2+ Lachman and a positive pivot shift. There was no varus or valgus instability. The diagnosis was chronic right anterior cruciate ligament deficient knee with secondary degenerative arthritis. A VA orthopedic examination was conducted in March 1996. At that time the veteran stated that his right knee was sore all the time. His right knee would give out without warning which caused him to fall. He was unable to squat because it caused severe pain. The examination showed that the veteran was wearing a well worn elastic appliance with hinged middle lateral and medial support. There was slight swelling and slight lateral instability. There was no deformity or subluxation. Range of motion was reported as: Flexion to 82 degrees and extension to zero degrees. There was a 10 cm linear scar on the medial aspect of the right knee. There was a bony prominence on the medial aspect of the right knee and a second one inferior to the patella. X-rays of the right knee show marked narrowing of the joint space. The diagnosis was degenerative joint disease of the right knee with deficient anterior cruciate ligament. April and May 1998 statements from a private physician are to the effect that the veteran has a progressive decrease in knee function and an increase in pain since his inservice right knee meniscal tear with open meniscectomy. It was also noted that the veteran had end stage knee disease and needed a knee replacement. Stooping, standing, or squatting, it was added, would markedly exacerbate the pain. The physician opined that the veteran was really only employable in a sedentary-type job. A VA orthopedic examination was conducted in December 1998. At that time, the veteran reported that he was involved in an accident during boot camp where he injured his right knee. He complained of recurrent right knee pain and weakness, accompanied by flare-ups which were precipitated by weather or unusual strain. These flare-ups were noted to be alleviated by rest. It was also noted that the veteran used a brace most of the time at work. He worked as a meat market manager. The examination revealed that motion stopped when pain began. Obvious evidence of painful motion was detected, with no edema nor effusion. Instability, weakness, slight tenderness was also noted, but no redness, heat, nor abnormal movement was documented by the examiner. Slight guarding of movement was noted. A nine centimeter longitudinal scar was noted to be present. The veteran was noted to walk with a marked limp using no cane, and wore an elastic brace with lateral metal supports. Range of motion testing of the right knee was reported as: Flexion to 90 degrees and extension to zero degrees. Moderate lateral instability of the right knee was also reported. The examiner stated that the right knee did exhibit weakened movement, excessed fatigability, and incoordination, which accounted for a 10 percent additional range of motion loss. The examiner also noted that pain could significantly limit function ability during flare-ups or when the knee was used repeatedly over a period of time. X-rays indicated that both chondrocalcinosis and degenerative change at the patellofemoral compartment was manifested. The diagnosis was degenerative joint disease of the right knee with loss of function due to pain. To summarize, the veteran has asserted that he experiences pain, limitation of motion, and instability as a result of his service-connected right knee disability. His statements describing the symptoms of his right knee disability are considered to be competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be viewed in conjunction with the objective medical evidence of record. In this regard, VA examination in December 1998 showed flexion to 90 degrees and extension to zero degrees of the right knee. Normal range of motion of the knee is extension to 0 degrees and flexion to 140 degrees. See 38 C.F.R. § 4.71, Plate II (1999). These findings do not satisfy the criteria for a compensable evaluation pursuant to Diagnostic Code 5260 or Diagnostic Code 5261, respectively. Accordingly a separate compensable rating for the arthritis of the right knee is not warranted. The recent VA examinations showed complaints of pain and weakness as well as periods of flare-ups. Swelling, instability, weakness, and slight tenderness was shown to be manifested. Flexion of the right knee was reported to be to 90 degrees. Additionally, the veteran walked with a marked limp while using no cane, and that he also wore a knee brace. After reviewing the medical evidence in conjunction with the veteran's complaints and the DeLuca case, it is the Board's judgment that the degree of impairment resulting from the right knee disability more nearly approximates the criteria for the next highest evaluation under diagnostic code 5257. Thus, a rating of 30 percent is warranted for severe disability. 38 C.F.R. § 4.7 (1999). However, this same evidence does not provide a basis for a higher rating. As previously discussed forward flexion was to 90 degrees and extension was normal. Accordingly a rating in excess of 30 percent is not warranted. There is no clinical indication that the surgical scar on the right knee was symptomatic. In rendering this determination, the Board has considered all pertinent aspects of 38 C.F.R. Parts 3 and 4 as required by the Court in Schafrath, supra. However, no potentially applicable provision provides a basis for a rating in excess of 30 percent for the veteran's right knee disability. ORDER Entitlement to an increased (compensable) evaluation for traumatic arthritis of the right knee is denied. Entitlement to an increased rating to 30 percent for postoperative residuals of a meniscectomy of the right knee is granted subject to the law and regulations governing the payment of monetary benefits. ROBERT P. REGAN Member, Board of Veterans' Appeals