Citation Nr: 0004040 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 95-23 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for a left knee disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from January 1978 to April 1988. This appeal arose from a June 1994 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to an increased evaluation for the service-connected left knee disability. In February 1997, the veteran testified at a personal hearing at the RO. In February 1998, the hearing officer issued a rating decision which increased the evaluation assigned to the service-connected left knee disability to 10 percent. In October 1998, this issue was remanded by the Board of Veterans' Appeals (Board) for further development, following which a rating action was issued which continued to deny entitlement to an evaluation in excess of 10 percent for the left knee disorder. The record does not show that the RO expressly considered referral of this case to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1995). 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"), has recently held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from considering whether referral to the appropriate first-line official is required. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Moreover, the Court has also held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only when circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,227 (1995). Having reviewed the record with these holdings in mind, the Board finds no basis for action on the question of the assignment of an extraschedular rating. FINDING OF FACT The veteran's service-connected left knee disability is manifested by some limitation of motion, atrophy of the quadriceps muscle, pain on motion and excessive fatigability. CONCLUSION OF LAW The criteria for an evaluation of 20 percent for the service- connected left knee disability have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.45, Codes 5003, 5010, 5257, 5260, 5261 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. It is also found that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of 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). 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 used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 states that, in cases of functional impairment, evaluations are to based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon a person's ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. § 4.40. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In evaluating a service-connected disability involving a joint rated on limitation of motion, the Board must also consider functional loss due to weakness, fatigability, incoordination or pain on movement of joint under the provisions of 38 C.F.R. § 4.45 (1999). The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran was awarded service connection for a left knee disorder by a rating action issued in July 1988. At that time, it was assigned a noncompensable evaluation. VA examined the veteran in January 1991. He complained that he was having increased left knee pain because he had to stand all day at his job. The objective examination noted that the circumference of the left mid-thigh was 21 inches (the right was 22 inches). The left knee displayed normal range of motion. There was no effusion and the collateral and cruciate ligaments were intact. A tendon was noted to ride over a bony irregularity at the lateral aspect of the left patella. An x-ray showed marginal osteophyte formation at the anterior aspect of the patellofemoral area. The diagnosis was degenerative arthritis with a spur on the left patella. VA outpatient treatment records developed between May 1993 and March 1994, showed that on May 20, 1993, he complained of an exacerbation of his left knee problems. He denied swelling or locking, but commented that he had occasional crepitus and a sense of instability. The objective examination found no effusion, but noted the presence of patella and joint line tenderness. There was no varus/valgus instability. On June 11, 1993, he reported a clicking sensation on occasion, as well as constant pain, limitation of motion and give way. X-rays showed calcification. The veteran testified at a personal hearing at the RO in February 1997. He complained of pain and stiffness and noted that the joint popped all the time. He stated that the knee joint would slip out and he would have to catch himself. He commented that he could not engage in sports activities; he spent a great deal of time sitting, with the knee elevated. He reported considerable morning stiffness and claimed to have swelling. He denied wearing a brace. VA examined the veteran in April 1997. He indicated his belief that the pain in his left knee was getting worse. The objective examination found that he was tender over the tibial tubercle, but there was no swelling or deformity. Range of motion was from 0 to 120 degrees. The diagnosis was patellofemoral chondritis with prominence of the tibial tubercle. Another VA examination of the veteran was conducted in March 1999. He complained of pain and decreased strength at times. He was able to squat with the knee in 100 degrees of flexion. Range of motion was noted to be 0 to 130 degrees (normal was 0 to 140 degrees). There was one inch of atrophy of the left quadriceps. The joint fatigued easily with increased stressing and upon repeated resistance. There was no instability or joint line pain. There was some subpatellar crepitus with pain. The examiner noted that when the veteran has pain he has increased disability. He also displayed excessive fatigability, although there was no incoordination. He complained of pain in the knee at 120 degrees of flexion. The diagnoses were chronic patellofemoral chondromalacia and degenerative arthritis of the left knee. According to the applicable criteria, arthritis due to trauma, substantiated by x-ray findings, is rated as degenerative arthritis. 38 C.F.R. Part, Code 5010 (1999). Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. These 10 percent evaluations are combined, not added, under the diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. Part 4, Code 5003 (1999). According to 38 C.F.R. Part 4, Code 5257 (1999), slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent disability evaluation. A 20 percent evaluation requires moderate impairment. A 10 percent evaluation is also warranted when flexion is limited to 45 degrees or when extension is limited to 10 degrees. A 20 percent evaluation requires flexion limited to 30 degrees or extension limited to 15 degrees. 38 C.F.R. Part 4, Codes 5260, 5261 (1999). After a careful review of the evidence of record, it is found that a 20 percent disability evaluation, but no more, is warranted for the veteran's service-connected left knee disorder. While the veteran does not meet the numerical requirements of 38 C.F.R. Part 4, Code 5260 or 5261 for the assignment of a 20 percent disability evaluation, it is found that his overall disability picture represents moderate impairment of the left knee joint. During the VA examination conducted in March 1999, the examiner commented that the veteran suffered from increased disability during flare-ups of his knee pain and indicated that the joint showed excessive fatigability upon stressing or upon repeated resistance. Moreover, his left quadriceps displayed one inch of atrophy, suggesting some disuse of this extremity. Therefore, it is found that the veteran is moderately impaired by his left knee disorder. However, given the facts that range of motion is from 0 to 130 degrees, that there was no evidence of joint instability, subluxation or effusion, it is found that severe impairment has not yet been demonstrated. Therefore, it is concluded that, after weighing all the evidence of record, and after resolving all doubt in the veteran's favor, an evaluation of 20 percent, but no more, for the service-connected left knee disability is warranted. ORDER A 20 percent disability evaluation for the service-connected left knee disability, subject to the laws and regulations governing the award of monetary benefits, is granted. C. P. RUSSELL Member, Board of Veterans' Appeals