Citation Nr: 0005653 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 97-13 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for anterior cruciate ligament tear of the left knee, including as secondary to chondromalacia of the left knee. 2. Entitlement to an increased (compensable) rating for chondromalacia of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran has active service from September 1967 to May 1971 and from August 1983 to March 1990. This matter came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The claim of entitlement to service connection for anterior cruciate ligament tear of the left knee, including as secondary to chondromalacia of the left knee, is not plausible. 2. The veteran's chondromalacia of the left knee is manifested primarily by crepitus and pain on use. CONCLUSIONS OF LAW 1. The claim for service connection for anterior cruciate ligament tear of the left knee, including as secondary to chondromalacia of the left knee, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for a rating of 10 percent for chondromalacia of the left knee have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection The veteran contends that his service-connected chondromalacia caused or contributed to the anterior cruciate ligament tear of his left knee. He argues that the chondromalacia weakened the left knee and was the cause of the injury that resulted in the anterior cruciate ligament tear and that the anterior cruciate ligament tear should be service connected. Under the law, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may also be established for disease initially diagnosed after discharge from service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). In addition, 38 C.F.R. § 3.310(a) provides that disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. Further, any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 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 [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Generally, for a service- connection claim to be well grounded, there must be: a medical diagnosis of current disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the asserted inservice injury or disease and the current disability. See Elkins v. West, 12 Vet. App. 209, 213 (1999) (en banc) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995) and Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well- grounded claim set forth in Caluza, supra) cert. denied sub nom. Epps v. West, 141 L. Ed. 2d 718, 118 S. Ct. 2348 (1998) (mem.)). A claim for secondary service connection, must, as must all claims, be well grounded. 38 U.S.C.A. § 5107(a); see Buckley v. West, 12 Vet. App. 76, 84 (1998); Dinsay v. Brown, 9 Vet. App. 79, 86 (1996); Jones v. Brown, 7 Vet. App. 134, 137 (1994) (requiring medical evidence showing relationship between service-connected disability and condition claimed to be secondarily service connected). The evidence does not show, nor does the veteran contend, that he had an anterior cruciate ligament tear of the left knee during service. The first evidence of the claimed disability appears in private medical records dated in December 1996. At that time the veteran was seen by John A. Gragnani, M.D., for evaluation of a twisting injury of the left knee, which had occurred the previous month. Dr. Gragnani stated he had reviewed a magnetic resonance imaging (MRI) scan of the left knee joint with a hospital radiologist, and they concluded that there was a possibility of at least a partial tear of the anterior cruciate ligament of the left knee joint. Additional medical evidence shows that the veteran received physical therapy for left knee symptoms and indicates that he underwent anterior ligament reconstruction of the left knee in May 1997. There is, however, no medical evidence that relates the left anterior cruciate ligament tear to service, nor is there any medical evidence that suggests that the veteran's service-connected chondromalacia of the left knee caused or chronically worsened the anterior cruciate ligament tear of the left knee. It is noteworthy that the VA physician who conducted an orthopedic examination in April 1999 reported that he had reviewed the medical records in the claims file and had interviewed the veteran. The physician stated there was no reason to believe that the veteran's pre- existing chondromalacia of the left patella had anything to do with the November 1996 traumatic left knee injury that produced the anterior cruciate ligament tear. The Board is left with the veteran's assertions and testimony that his service-connected chondromalacia caused the 1996 injury that resulted in the anterior cruciate ligament tear of the left knee. However, the veteran, as a lay person, is not competent to furnish medical opinions or diagnoses. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). With a claim such as this, where the determinative issue involves medical diagnosis and etiology, competent medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). See Heuer v. Brown, 7 Vet. App. 379, 384 (1995). Because the veteran cannot meet his initial burden by relying on his own opinion as to medical matters and he has submitted no cognizable evidence to support his claim, the claim for service connection for anterior cruciate ligament tear of the left knee, including as secondary to chondromalacia of the left knee, is not well grounded and must be denied. The Board has denied service connection for anterior cruciate ligament tear of the left knee on the basis that the claim is not well grounded. Although the Board has considered and denied this claim on grounds different from that of the RO, which essentially denied the claim on the merits, the veteran has not been prejudiced by the Board's decision. This is because in assuming that the claim was well grounded, the RO accorded the veteran greater consideration that the claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). To remand this claim for consideration of whether it is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the veteran. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49,747 (1992). Increased rating The veteran is seeking a compensable rating for his service- connected chondromalacia of the left knee. The Board finds the increased rating claim to be well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board also finds that the facts relevant to this claim have been properly developed, and the statutory obligation of VA to assist the veteran in the development of this claim has been satisfied. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran's chondromalacia of the left knee. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this issue presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the veteran's chondromalacia of the left knee, except as noted below. Briefly, in a decision dated in June 1995, the Board granted service connection for chondromalacia of the left knee. The RO effectuated that decision in its June 1995 rating decision and assigned a non-compensable rating for chondromalacia of the left knee effective from the day following separation from service in March 1990. In the rating assignment, the RO considered post-service private treatment records and reports of VA examinations conducted in February 1992, April 1993, August 1993 and August 1994. At the February 1992 examination, the examiner noted crepitus of the left knee and complaints of pain with bending and use of stairs. At the April 1993 examination there was no crepitus and the veteran gave no history of swelling of the left knee. The diagnosis was chondromalacia of the left knee, symptomatic when getting up from a squatting position and going up steps. At the August 1993 examination, there was some knee pain with squatting, and the examiner noted crepitus with range of motion. At the August 1994 examination, the diagnosis was left knee pain primarily with squatting, stooping and stairs, questionable chondromalacia patella. The veteran did not appeal the initial rating and filed his increased rating claim in December 1996 following his work- related left knee injury that resulted in the anterior cruciate ligament tear of the left knee. The veteran submitted examination reports from Dr. Gragnani dated in December 1996, which show the veteran complained of a sharp achy pain in the left knee and was concerned that the left knee seemed to want to give out on him when he tried to walk without a brace. There was tenderness on palpation of the knee joint, both in the lateral posterior area, the lateral area and the medial joint line area. There was also tenderness beneath the kneecap on downward pressure applied to the patella. The veteran was able to extend the left knee fully to 0 degrees and was able to flex to 110 degrees with some pain. The doctor recommended limited weight bearing for about three weeks and also recommended a physical therapy program. As noted earlier, Dr. Gragnani identified a probable anterior cruciate ligament tear of the left knee on an MRI scan. At a VA orthopedic consultation in March 1997, the physician noted that an MRI study was consistent with an anterior cruciate ligament tear of the left knee. Examination showed instability of the left knee, and the physician recommended physical therapy including quadriceps strengthening. The assessment was left anterior cruciate ligament tear, symptomatic with activities of daily living. At the hearing at the RO in May 1997, the veteran testified that before the knee injury in November 1996 there was some tenderness on the left side of his knee. He testified that he had pain in his left knee both before and after the November 1996 injury. He testified that the grinding sensation, pain and swelling in his left knee had grown worse before the accident, but since the injury he had experienced constant soreness and had increased problems with the knee locking up and giving way. At the VA orthopedic examination in April 1999, the physician noted the veteran's medical history and reviewed examination reports in the claims files. The veteran reported that since his May 1997 left knee surgery for anterior cruciate ligament repair he no longer had episodes of giving way, buckling or locking of the left knee. He said his left knee tended to swell when he was on his leg for more than an hour. He reported stiffness in the knee when he first got up to walk after being seated. He said he could kneel, but with discomfort. He reported going up and down stairs caused some degree of aching in his left knee. He said he had mild flare-ups of left knee soreness during weather change, which caused aching. However, the flare-ups did not prevent him from working or going about his day-to-day activities. On examination, the veteran was able to squat to 130 degrees of flexion while holding the examining table; he complained of pain in the anterior, medial, and lateral aspect of the left knee, but no pain in the right knee. Range of motion of the left knee was 0 to 130 degrees. There was slight patellofemoral crepitus of the left knee during active flexion and extension against resistance. There was 3-cm atrophy of the left thigh measured 10 cm above the knee, and there was weakness in the left quadriceps corresponding to the left thigh atrophy. There was slight soft tissue thickening about the infrapatellar area of the left knee with slight irregularity to palpation over the patellar tendon beneath the area of an anterior longitudinal surgical scar. There was a subjective complaint of slight tenderness along the anterior medial and anterior lateral joint line, bilaterally. The physician stated that he did not believe that range of motion or joint function was additionally limited by pain, fatigue, weakness or lack of endurance. He said the episodes of flare-up were only mild aching during weather changes and he did not believe that the lateral symptoms with weather change would affect the range of motion or joint function. The diagnoses were: chondromalacia, left patella; anterior cruciate ligament tear of the left knee; and postoperative status anterior cruciate ligament reconstruction, left knee. The physician at the April 1999 examination stated that the veteran's symptoms of left knee pain, swelling and grating or grinding sensation would be expected with a diagnosis of chondromalacia. The physician stated that the decrease in flexion of the left knee found at the examination would be compatible with the surgery to reconstruct the anterior cruciate ligament and that the knee was stable as a result of the successfully surgery. The physician stated he believed the atrophy of the left thigh, which resulted in weakness of the left leg and decreased endurance, was related to the anterior cruciate ligament tear of November 1996 and the subsequent surgery. The physician stated the veteran continued to have pre-injury symptoms of pain with standing, squatting, bending and stairs. April 1999 VA X-rays of the left knee showed metallic screws in the lower femur and upper tibia, secondary to previous surgery, and post-operative changes involving the patella were noted. Joint outlines were maintained. The radiologist stated that no other bony injury abnormality was seen. The impression was post-operative changes. The physician who performed the April 1999 clinical examination reviewed the X-rays and stated that patellar-femoral joint narrowing was present. He said he had no changes in the statements he had made in the clinical examination report. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service- connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). When there is a question as to which of two ratings shall be applied, the higher rating 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. The evaluation of the same disability under various diagnoses and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (1999). When an unlisted condition is encountered, it will be permissible to rate it under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous. 38 C.F.R. § 4.20 (1999). Where the Rating Schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999) Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (1999). With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45 (1999). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (1999). The veteran's chondromalacia is currently rated as noncompensably disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999). Diagnostic Code 5257 provides that other knee impairment, including recurrent subluxation and lateral instability, warrants a 10 percent evaluation if it is slight or a 20 percent evaluation if it is moderate. Limitation of extension of a leg warrants a noncompensable evaluation if extension is limited to 5 degrees, a 10 percent evaluation if extension is limited to 10 degrees, or a 20 percent evaluation if extension is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (1999). Limitation of flexion of a leg warrants a noncompensable evaluation if flexion is limited to 60 degrees, a 10 percent evaluation if flexion is limited to 45 degrees, or a 20 percent evaluation if flexion is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Dislocated semilunar cartilage warrants a 20 percent evaluation if there are frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (1999). The evidence outlined above shows that the veteran's chondromalacia of the left knee is manifested primarily by crepitus, swelling and pain on use. Although the veteran has active left knee motion from 0 to 130 degrees, the pain on use is for consideration in determining the extent of limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). With consideration of the pain on use and the symptoms during flare ups, the Board concludes that a 10 percent evaluation is warranted under Diagnostic Code 5260. However, in view of the veteran's demonstrated range of motion; the evidence indicating that the chondromalacia is not productive of incoordination, weakened movement, or excess fatigability; and the opinion of the April 1999 examiner that there was no additional functional limitation due to pain, fatigue, weakness or lack of endurance or due to weather changes, the Board must conclude that the limitation of motion does not more nearly approximate the criteria for a 20 percent rating under Diagnostic Code 5260 or 5261. The medical evidence shows that the service-connected disability is not productive of instability or recurrent subluxation so it does not warrant a compensable evaluation under Diagnostic Code 5257. In addition, the service- connected disability does not include dislocated semilunar cartilage and there is no medical evidence of locking. Therefore, the disability does not warrant a 20 percent rating under Diagnostic Code 5258. The Board has also considered whether there should be referral to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (1999). The veteran has not indicated that he has lost time from work because of the service-connected chondromalacia of the left knee. Further, the manifestations of the disability to which the veteran testified at his hearing and which have been documented in the medical evidence are consistent with the assigned rating. In sum, there is no indication in the record that the average industrial impairment resulting from his chondromalacia of the left knee would be in excess of that contemplated by the assigned evaluation. Therefore, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for anterior cruciate ligament tear of the left knee, including as secondary to chondromalacia of the left knee, is denied. A 10 percent rating is granted for chondromalacia of the left knee, subject to the laws and regulations governing the award of monetary benefits. SHANE A. DURKIN Member, Board of Veterans' Appeals