BVA9504165 DOCKET NO. 92-15 131 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased evaluation for a right knee disorder, currently evaluated at 20 percent. 2. Entitlement to a compensable evaluation for a left knee disorder. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD N. W. Fabian, Associate Counsel INTRODUCTION The veteran served in active duty for training from November 1969 to June 1970. This appeal was previously before the Board of Veterans' Appeals (Board) in December 1992. At that time the case file was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) to obtain treatment records from VA medical facilities and to request the veteran to submit any additional evidence in support of his claim. That development has been completed and the case file returned to the Board for determination. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his right knee has gotten worse because he has pain and swelling in the right knee, stiffness in the knee in inclement weather, he wears a brace on the knee, and he takes medication daily for pain. He further states that he does not walk properly on the right knee and that causes problems with his left knee. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for an increased evaluation for a right knee disorder and for a compensable evaluation for a left knee disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The symptoms of a right knee disorder are currently manifested by pain on movement with no limitation of motion. 3. The symptoms of a left knee disorder are currently manifested by subjective complaints of pain with no limitation of motion. CONCLUSIONS OF LAW 1. The criteria for the assignment of a disability evaluation greater than 20 percent for a right knee disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.14, 4.40, 4.59, 4.71, Plate II, 4.71a, Diagnostic Codes 5003, 5020, 5257, 5260, 5261 (1994). 2. The criteria for the assignment of a compensable disability evaluation for a left knee disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.20, 4.31, 4.40, 4.59, 4.71, Plate II, 4.71a, Diagnostic Codes 5003, 5020, 5257, 5260, 5261 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon review of the record, the Board concludes that the veteran's claim is well grounded within the meaning of the statutes and judicial construction. See 38 U.S.C.A. § 5107(a) (West 1991). The VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. Id. The pertinent evidence pertaining to the issues on appeal consists of VA treatment notes from January 1990 to December 1992, the report of a VA examination conducted in July 1991, and the report of an X-ray from a private physician dated in February 1993. The Board concludes that all relevant data has been obtained for determining the merits of the veteran's claim. The VA has, therefore, fulfilled its obligation to assist the veteran in the development of the facts of his case as required by 38 U.S.C.A. § 5107(a). Disability ratings are based on the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1994). The average impairment as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disabilities specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. Id. When an unlisted disorder is encountered it is rated under a closely-related disease or injury that involves the same functions, anatomical location, and symptoms. See 38 C.F.R. § 4.20. If the minimum schedular rating requires residuals and the schedule does not provide a no-percent evaluation, a no- percent evaluation will be assigned when the required residuals are not shown. See 38 C.F.R. § 4.31. The evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14. In determining whether an increased evaluation is proper, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or in equal balance, the claim is allowed. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. The normal range of motion for the knee is from zero degrees extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5020 for synovitis is to be evaluated as degenerative arthritis under Diagnostic Code 5003. Degenerative arthritis is to be evaluated based on the limitation of motion of the joint, but if the disorder is noncompensable under the applicable diagnostic code due to documented limitation of motion that is insufficient to qualify for an evaluation, the disorder is evaluated at 10 percent for each such joint. In the absence of limitation of motion, a 10 percent evaluation applies with X- ray evidence of arthritic involvement of two or more major joints and a 20 percent evaluation applies with X-ray evidence of arthritic involvement of two or more major joints with occasional incapacitating exacerbations. The 20 percent and 10 percent evaluations based on X-ray evidence of degenerative arthritis do not apply, however, in evaluating the disorders as synovitis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5020. With any form of arthritis, painful motion is an important factor of disability. The existence of painful motion as evidenced by facial expression, wincing, etc., on pressure or manipulation should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Diagnostic Code 5257, pertaining to impairment of the knee with recurrent subluxation or lateral instability, provides a 10 percent evaluation for slight impairment and a 20 percent evaluation for moderate impairment. Diagnostic Code 5260, limitation of flexion of the leg, provides a non-compensable evaluation if flexion is limited to 60 degrees, a 10 percent evaluation where flexion is limited to 45 degrees and a 20 percent evaluation where flexion is limited to 30 degrees. Diagnostic Code 5261, limitation of extension of the leg, provides a non-compensable evaluation if extension is limited to five degrees, a 10 percent evaluation where extension is limited to 10 degrees and a 20 percent evaluation where extension is limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, 5261. The veteran contends that his right knee has gotten worse because he has pain and swelling in the right knee, stiffness in the knee in inclement weather, he wears a brace on the knee, and he takes medication daily for pain. He further states that he does not walk properly on the right knee and that causes problems with his left knee. The veteran's service medical records show that in January and February of 1970 he complained of knee pain in both knees. Physical examination revealed no instability, click, effusion, or crepitation. X-rays revealed no abnormalities of the bones in the knees. The veteran was returned to duty with no treatment or limitations noted. On his separation examination the veteran reported that he had a trick or locked knee. The physical examination was negative for any musculoskeletal abnormalities. The veteran was granted service connection for tenderness in both knees at a non-compensable level in a rating determination issued in September 1970. This determination was based on the report of a VA examination conducted in July 1970 that showed that both knees were tender on the medial and lateral sides of the anterior joint. There was no limitation of motion, no crepitations or instability, and the veteran could squat well. X-rays were negative for any abnormalities. The noncompensable rating was increased to a 10 percent evaluation for the right knee in a rating determination issued in November 1970. This determination was based on a VA treatment record that indicated that the veteran had been hospitalized due to complaints of pain in his right knee. He was placed on the quadriceps exerciser and the pain resolved spontaneously. The diagnosis of pes anserine bursitis was made and the veteran discharged without symptomatology. There was no treatment for the left knee and the disability evaluation for the left knee remained at a noncompensable level. The 10 percent evaluation for the right knee was increased to a 20 percent evaluation in a rating determination issued in March 1972. This rating increase was based on VA treatment records that showed the right knee had minimal lateral instability and tenderness in the joint space. The treating physician diagnosed the veteran's right knee disorder as synovitis and the rating determination revised the service-connected disorder accordingly. The report of a VA examination conducted in February 1972 showed tenderness in the joint space but no deformity, swelling, edema, or effusion of the right knee. There was no loss of motion, no instability, and no atrophy of the thigh or calf muscles. The veteran squatted with his right knee flexed to only 90 degrees. X-ray revealed no pathology of the right knee. There were no complaints made regarding the left knee and the evaluation for the left knee remained at a noncompensable level with a diagnosis of tenderness in the left knee. The veteran underwent a VA examination again in July 1991. In conjunction with the examination, the veteran complained of constant pain in his right knee and some occasional pain in the left knee. The veteran limped on his right foot, but he could stand on the toe and heel of the right foot unaided. There were no limitation of motion, no fluid, no crepitation, and no lateral instability or subluxation. The patella was movable. Quadriceps power was good. The examiner noted that the veteran complained of pain on all movements. Measurement of the muscles in the right leg were the same as those in the left leg. An X-ray was negative for any abnormalities in the right knee. The diagnosis was no abnormal objective physical findings. An X-ray of the right and left knees in October 1991, however, revealed minimal sharpening at the margins of both joints and small spurs at the posterior poles of both patellae compatible with degenerative arthritic changes. A VA treatment note dated in October 1991 showed that the veteran was limping and was unable to squat. Physical examination revealed range of motion in the right knee of zero to 140 degrees and in the left knee of zero to 145 degrees. The report of a magnetic resonance imaging (MRI) study done on the veteran's right knee in October 1991 revealed joint effusion with a tear in the anterior horn of the lateral meniscus and an associated meniscal cyst. A VA treatment note dated in August 1992 showed that the veteran walked with a "variable" limp on the right leg. He was wearing a lateral hinged-bar knee brace on his right knee. The veteran could stand on either leg without aid. The knee was anatomically contoured, and there was no effusion, crepitation, lateral instability, or subluxation. The range of motion of the right knee was extension of zero degrees and flexion of 140 degrees. Quadriceps power was normal. The patella was mobile. Measurement of the thigh muscles was the same in both legs; the right knee was measured at 41 centimeters and the left at 39 centimeters; the right calf was 37 centimeters and the left calf 36 centimeters. The report indicates that no objective abnormal orthopedic findings were found in the right knee. The examiner commented that, based on the physical examination, there was no basis found for the brace on the right knee. The veteran submitted an X-ray from his private physician prepared in February 1993 that showed no abnormalities of the right knee. Analysis of the evidence in file shows that the veteran is not entitled to an evaluation in excess of 20 percent for the right knee disorder. The existing 20 percent evaluation for the veteran's right knee was granted under Diagnostic Code 5257 because at the time the rating determination was issued there was evidence of minimal lateral instability in the right knee. A 30 percent evaluation under Diagnostic Code 5257 requires that there be severe recurrent subluxation or lateral instability. There is no evidence in file that the veteran currently has any recurrent subluxation or lateral instability of the right knee to warrant an increased evaluation under Diagnostic Code 5257. Diagnostic Code 5260 requires that flexion of the knee be limited to 15 degrees in order for a 30 percent evaluation to apply and Diagnostic Code 5261 requires that extension be limited to 20 degrees for a 30 percent evaluation to apply. The veteran is not entitled to an increased evaluation for the right knee under Diagnostic Code 5260 or 5261 for limitation of motion because there is no evidence in file that the right knee has any limitation of motion. Because the October 1991 X-ray revealed degenerative arthritic changes in both knees, the veteran would be entitled to a 10 percent evaluation under Diagnostic Code 5003 for X-ray evidence of arthritic involvement of both knees. However, 38 C.F.R. § 4.14 prohibits evaluating the same symptoms under different diagnostic codes. Therefore, the veteran's right knee disorder cannot be evaluated under both Diagnostic Codes 5003 and 5257. Because he is entitled to a higher evaluation under Diagnostic Code 5257, that evaluation will remain in effect. The veteran is not entitled to an additional evaluation under 38 C.F.R. § 4.59 because a schedular evaluation higher than the minimum already applies under Diagnostic Code 5257. The veteran's complaints of swelling and stiffness are considered in an evaluation based on limitation of motion, and his complaints of pain are contemplated by the current evaluation. There is no medical indication that any pain that he experiences is above the level contemplated by the current 20 percent evaluation. There is no existing diagnostic code for tenderness in the knee, so the veteran's left knee disorder must be evaluated under the diagnostic code that most closely resembles his current symptoms in that knee. Diagnostic Code 5260 requires that flexion be limited to 45 degrees for a 10 percent evaluation to apply and Diagnostic Code 5261 requires that extension be limited to 10 degrees for a 10 percent evaluation to apply. The veteran is not entitled to a compensable evaluation for limitation of motion of the left knee under Diagnostic Code 5260 or 5261 because there is no evidence in file that the left knee has any limitation of motion. A compensable evaluation is not warranted under Diagnostic Code 5257 because there is no evidence of subluxation or instability in the left knee. The veteran is not entitled to a 10 percent evaluation under Diagnostic Code 5003 for X-ray evidence of degenerative arthritis in a joint affected by limitation of motion because the left knee has no limitation of motion. The veteran is not entitled to an evaluation under Diagnostic Code 5003 for X-ray evidence of arthritic involvement in two or more major joints because the right knee is more highly evaluated under Diagnostic Code 5257 and both codes cannot apply pursuant to 38 C.F.R. § 4.14. There is no documentation of complaints of pain, instability, or a maligned joint regarding the left knee in the VA treatment notes or the VA examinations to warrant the minimum schedular evaluation for the left knee under 38 C.F.R. § 4.59. There is no question regarding which of two evaluations would more properly classify the severity of his service-connected disability. See 38 C.F.R. § 4.7. There has been no marked interference with employment or frequent hospitalizations to warrant an extra-schedular rating. See 38 C.F.R. § 3.321(b). ORDER The veteran's claim for an increased evaluation for a right knee disorder and for a compensable evaluation for a left knee disorder is denied. WILLIAM J. REDDY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.