Citation Nr: 0002272 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-12 408 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for arthritis of the lumbosacral spine, cervical spine, and right knee. 2. Entitlement to an increased rating for osteochondritis dissecans of the right hip with post-traumatic arthritis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Ehrman, Counsel INTRODUCTION The veteran had active military service from February 1982 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February and June 1998 rating decisions which denied claims for an increased rating for service-connected right hip disability and service connection for arthritis of the lumbosacral spine, cervical spine, and right knee. FINDINGS OF FACT 1. No competent medical evidence has been submitted to show that the veteran has arthritis of the lumbosacral spine, cervical spine, or right knee that is attributable to military service or to already service-connected disability. 2. Service-connected right hip disability is manifested by full extension and flexion of the hip joint with pain on rotation, as well as other complaints of pain which are significantly exaggerated. CONCLUSIONS OF LAW 1. The claim of service connection for arthritis of the lumbosacral spine, cervical spine, or right knee is not well grounded. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (1999). 2. The criteria for an evaluation in excess of 10 percent for osteochondritis dissecans of the right hip with post- traumatic arthritis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a (Diagnostic Codes 5003, 5010, 5251, 5252, 5253, 5255) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's service medical records show occasional treatment for a right hip disorder and occasional complaints of right knee pain following an injury in 1982. In July 1982, the veteran was first seen for intermittent, "in & out" right hip and right knee pain since an injury during basic training. On examination, the right knee had no swelling, tenderness, discoloration, effusion, or quadriceps atrophy. The right hip had limited range of motion accompanied by pain. Tenderness of the right knee pre- patellar region was noted, and the assessment was pre- patellar bursitis. The veteran was seen in May 1983 with recurrence of right knee and right hip injury and pain. A history of prior trauma to the same leg was noted. The assessment was a lesion of the distal femur, and a questionable internal derangement of the right knee. A bone scan revealed avascular necrosis of the left femoral head. In June and August 1983, complaints of right knee and right hip pain were again reported, with notation of a cystic mass on the anterior right femoral head. The veteran was recommended for light or limited duty due to a hip disorder. In January 1984, the veteran was seen with an initial impression of probable osteochondritis dissecans, multiple joints. X-rays of the shoulder, knees, ankles and elbows were scheduled, as well as a computerized tomography scan (CT scan). X-rays were noted to show a femoral cyst of the right and left hips. In February 1984, an examiner noted that all studies, including the bone scan, had been within normal limits. The impression was subjective complaints of right knee pain, without any objective correlation. The veteran was recommended for a 30-day limited profile for osteochondritis dissecans of the right hip. In December 1984, notation was made of a history of osteochondritis dissecans of the right hip, and the veteran was placed on temporary limited duty profile for her right hip pain. The veteran was afforded a VA examination in December 1985. The veteran reported that an in-service fall had resulted in an injury of both the right hip and right knee. She reported very little trouble with her right knee, other than occasional pain. Examination of the right knee was unremarkable. X-rays of the right hip were obtained and showed moderate osteoarthritic changes of the right hip, with some local irregularity close to the fovea. The right knee x-rays revealed a small lesion in the medial posterior distal right femur consistent with a partly ossified fibroma. The examiner's diagnoses were old osteochondritis dissecans of the right hip with moderate degenerative arthritis, and a small ossified fibroma of the right knee. By a January 1986 rating decision, the RO granted service connection for osteochondritis dissecans with degenerative arthritis of the right hip. A 10 percent evaluation was assigned under Diagnostic Code 5003 and the rating has remained in effect since that time. Service connection was also established for the ossified fibroma of the right distal femur, as demonstrated on the VA x-rays detailed above. On VA orthopedic examination in March 1989, the examiner noted that the veteran had been previously examined at VA for the same right hip condition, and that the symptoms of that disorder had not changed. The diagnosis was residuals of old osteochondritis dissecans of the right hip, with post- traumatic degenerative arthritis of the hip, with stress symptoms and movement pain, unchanged. Private treatment records of 1992 refer to treatment for a disorder not pertinent to the claims on appeal. It is noted that a March 1992 chest x-ray revealed early degenerative changes of the thoracic spine, with reactive sclerosis and joint space narrowing. Abdominal x-rays revealed surgical staples projected over the lumbosacral spine area. On VA examination in July 1995, the veteran reported a history of pain in the right knee, back, and hips. It was felt that a major portion of the veteran's complaints were of functional origin, rather than organic. X-rays were obtained and noted to reveal degenerative changes of the pelvis and both hips. Right knee x-rays were found to be unremarkable. On VA examination in April 1997, the veteran again reported a history of a traumatic right knee injury in 1982 while in boot camp during her early military service. She complained of right knee, right hip, low back and left leg pain, with occasional right leg pain, symptoms which reportedly interfered with her sleep. On examination, the veteran was in no apparent distress, her ambulation into the examining room, getting into and out of a chair, and dressing and undressing were all performed without difficulty. Range of motion of the bilateral hips was 0 to 125 degrees, with complaints of pain on internal and external rotation, which the examiner noted to be significantly exaggerated. The examiner concluded that the veteran had exaggerated pain response with arm failing, grimacing and knee buckling with all ranges of motion, as well as with palpation of the lumbar spine and paraspinals. Subjective complaints of diminished sensation in the lateral aspect of the right foot and anterior aspect of the knee were noted, with no diminished sensation identified on examination. The impression was diffuse degenerative joint disease of the lumbar spine, bilateral hips and sacroiliac joints. It was felt that degenerative changes were consistent with the patient's age, and because there was no degenerative joint disease noted in the knees, it appeared unlikely that the disease was significantly related to service-connected injury. X-ray reports revealed minimal degenerative joint disease predominantly at L5, normal bilateral hips, normal pelvis, and slight flattening of the left lateral tibial plateau with an otherwise negative evaluation of the knees. Subsequently prepared VA out-patient treatment records for 1997 show treatment for disorders not pertinent to the appeal, but with notation of continued complaints of back, neck and knee pain. Private treatment records show participation in a physical therapy regimen for complaints of right low back, right knee, and left shoulder pain. The veteran reported that these symptoms had increased since surgery in 1992 for a disorder not pertinent to the appeal. An August 20, 1997, physical therapy treatment summary indicates that, with regard to her right hip and right knee complaints, x-rays had been negative. X-ray reports from this facility dated a few weeks earlier than the treatment summary revealed degenerative changes of the cervical spine, at C4-C6, and a Grade I retrolisthesis at L4-5, which was thought to possibly be degenerative. Hospital progress notes of October 1997 indicate degenerative joint disease of the back and neck, by history, with subsequent notation of this history. See October 31, 1997 progress note. II. Analysis Service Connection for Arthritis of the Lumbosacral Spine, Cervical Spine, and Right Knee Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist her in developing the facts pertinent to her claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The United States Court of Appeals for Veterans Claims (Court) has held that competent evidence pertaining to each of three elements must be submitted in order make a claim of service connection well grounded: (1) There must be competent (medical) evidence of a current disability; (2) competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and, (3), competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The evidence of record shows a current diagnosis of lumbosacral arthritis on both private and VA examinations, as well as cervical spine and right knee degenerative arthritis on private examination, but not on VA examination, including on most recent examination in April 1997. The salient point is, however, that no competent medical nexus evidence is of record to link any current lumbosacral, cervical spine, or right knee arthritis to the veteran's active military service. Additionally, no such problem is show until many years after the veteran's separation from active duty in 1985. Accordingly, her claim for service connection is not well grounded. See Caluza, 7 Vet. App. at 506. The Board notes that the service medical records show an initial diagnosis of right knee bursitis on examination in July 1982, following notation of a right hip and right knee injury. The veteran has claimed service connection for arthritis of the right knee, however. The claimed disorder is not shown in service, nor was the bursitis diagnosis revisited by any in-service examiner. Indeed, subsequently prepared service medical records include notations that her complaints of right knee pain were subjective and without objective correlation. Right knee arthritis was not shown on VA examination in December 1985, a few months after her separation from service, in March 1989, July 1995, or on most recent VA examination in April 1997. Accordingly, right knee arthritis is neither shown in service nor shown to be due to an in-service knee injury or manifest within a year of separation from service. See Caluza, 7 Vet. App. at 506; 38 C.F.R. §§ 3.307, 3.309. The veteran's claim of service connection for lumbosacral and cervical spine arthritis fails for similar reasons, namely, no medical nexus evidence. No lumbosacral or cervical spine injury, or arthritis in these areas is shown in service, or within a year after separation from such service , and without any competent medical evidence to show that current arthritis of the lumbosacral or cervical spine is attributable to the veteran's active military service, or to an incident or injury in service, a well-grounded claim is not presented. Additionally, no medical evidence has been presented to suggest that lumbosacral spine, cervical spine, or right knee arthritis is due to or made worse by already service- connected disability. 38 C.F.R. § 3.310. Although the veteran has argued that the RO's original grant of service connection for arthritis of the right hip constituted a grant of service connection for degenerative arthritis wherever it appeared, the Board does not find that the RO intended to grant service connection for disability other than that affecting the right hip. The available evidence and the RO's explanation in the January 1986 rating decision lead to the conclusion that service connection was granted for disability of the right hip only. It was merely rated in accordance with Diagnostic Code 5003 (degenerative arthritis). Subsequently, the rating code was changed by the RO from Diagnostic Code 5003 to Diagnostic Code 5010 in order to make clearer the disability for which service connection was granted, namely traumatic arthritis. However, there is no indication that this switch was tantamount to a severance of service connection for some more broadly defined disability. Since the change in the Diagnostic Code is permissible when it is clear that the disability for which service connection was granted was not changed, see VAOPGCPREC 13-92 (June 2, 1992); 57 Fed. Reg. 49746 (1992), the Board finds that the original grant of service connection for right hip arthritis did not constitute a grant of service connection for a systemic disease process which would include the lumbosacral spine, cervical spine, or right knee. It has been asserted on the veteran's behalf that she is entitled to the benefit of the doubt. See 38 U.S.C.A. § 5107 (West 1991). However, the benefit-of-the-doubt doctrine only applies if VA adjudicators reach the merits of the claims. As the veteran has not presented a well-grounded claim of service connection for lumbosacral spine, cervical spine, or right knee arthritis, the Board does not reach the merits; the benefit-of-the-doubt doctrine is inapplicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). The VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4 identifies separate diagnostic codes for various disabilities. The governing regulations provide that the higher of any two evaluations will be assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (1999). Degenerative or traumatic arthritis is rated in accordance with the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (1999). Arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added, under 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. § 4.71a Diagnostic Code 5003. (Osteochondritis dissecans, an unlisted condition, has been rated by analogy to Diagnostic Code 5003. 38 C.F.R. § 4.20 (1999).) The veteran has asserted that her service-connected right hip disorder warrants a rating in excess of 10 percent on account of her pain and functional impairment. It has been argued on her behalf that application of the principles set forth in 38 C.F.R. §§ 4.40, 4.45 warrant an evaluation in excess of 10 percent. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court held that criteria which provide a rating on the basis of loss of range of motion require consideration of 38 C.F.R. §§ 4.40 and 4.45 (regulations pertaining to functional loss of the joints due to pain, etc.). Therefore, to the extent possible, the degree of additional debility caused by pain or other functional losses, such as weakened movement, excess fatigability, or incoordination, should be noted in terms consistent with applicable rating criteria. DeLuca, supra. The function of the hip may be evaluated under Diagnostic Codes 5250, 5251, 5252, 5253, 5254, or 5255. Diagnostic Code 5250, regarding ankylosis of the hip, unfavorable, intermediate, and favorable, and is not for application in this case because ankylosis of the hip is neither shown by the evidence of record, nor reported by the veteran. Similarly, the evidence of record neither shows the hip joint to be flail, nor the femur to have any fracture or malunion. Accordingly, Diagnostic Codes 5254 and 5255, which set forth criteria for rating a flail joint or fracture of the femur, are not for application. Limitation of motion of the hip is evaluated under Diagnostic Codes 5251, 5252 and 5253. Diagnostic Code 5251 allows for a 10 percent rating for limitation of extension of the thigh to 5 degrees. Diagnostic Code 5252 provides for a 10 percent rating where limitation of flexion of the thigh is limited to 45 degrees. If such limitation is to 30 degrees, a 20 percent rating is available, and a 30 percent rating is assigned for limitation of flexion of the thigh to 20 degrees. A 40 percent rating is for assignment when flexion is limited to 10 degrees. Under Diagnostic Code 5253, limitation of rotation of the thigh of the affected leg, that is, an inability to toe-out more than 15 degrees, and limitation of adduction of the thigh, that is, an inability to cross one's legs, both warrant a 10 percent rating. A 20 percent rating is assigned for limitation of abduction of the thigh, with motion lost beyond 10 degrees. The Board is of the opinion that the evidence of record, in light of all pertinent laws and regulations including the principles embodied in 38 C.F.R. §§ 4.40, 4.45, warrants no more than the currently assigned 10 percent rating. A VA examiner in April 1997 determined that the veteran's complaints of pain were significantly exaggerated. With consideration of this opinion, and the findings of full range of flexion and extension of the right hip, a higher rating is not warranted. The veteran had full extension and flexion of the hips from 0 to 125 degrees on VA examination in April 1997, and without any evidence of greater impairment since that time, an evaluation in excess of the 10 percent rating is not warranted under Diagnostic Code 5251 or 5252. (The Board notes that normal range of motion of the hip is from 0 degrees of extension to 125 degrees of flexion. See 38 C.F.R. § 4.71, Plate II.) While there was pain on internal and external rotation, the veteran's complaints of pain were thought to be significantly exaggerated. This opinion's significance is underscored by the documented medical history found in the veteran's service medical records. See Service medical record dated in February 1984 regarding the opinion that her subjective complaints of pain were not objectively supported. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion). Considering potentially applicable rating criteria as set forth above, any pain or other functional impairment does not rise to a level greater than that which is contemplated by the 10 percent rating. 38 C.F.R. § 4.71a. The Board finds that the evidence of record does not suggest such an unusual or exceptional disability picture so as to render "impractical" the application of the regular schedular standards. See 38 C.F.R. § 3.321 (1999). Although the veteran has described her pain as being so bad that she cannot work, the evidence shows that her complaints are exaggerated, and her hip has full range of motion of flexion and extension. Moreover, her right hip has not resulted in frequent periods of hospitalization or in marked interference with employment. Id. It is undisputed that her right hip has some adverse affect on employment, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (1999). Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. ORDER Service connection for arthritis of the lumbosacral spine, cervical spine, or right knee is denied. An increased rating for osteochondritis dissecans of the right hip with post-traumatic arthritis is denied. MARK F. HALSEY Member, Board of Veterans' Appeals