Citation Nr: 0003884 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 95-24 900 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. The propriety of the initial 10 percent evaluation assigned for the service-connected arthritis of the right knee. 2. The propriety of the initial 10 percent evaluation assigned for the service-connected arthritis of the left knee. 3. The propriety of the initial 10 percent evaluation assigned for the service-connected arthritis of the right ankle. 4. The propriety of the initial 10 percent evaluation assigned for the service-connected arthritis of the left ankle. 5. The propriety of the initial 10 percent evaluation assigned for the service-connected psoriasis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Julie L. Salas, Associate Counsel INTRODUCTION The veteran served on active duty from September 1973 to December 1993. This matter initially came to the Board of Veterans' Appeals (Board) on appeal of a June 1994 rating decision of the RO. In April 1999, the Board remanded this matter for additional development of the record. The Board noted in its prior decision/remand dated in April 1999, that the veteran had asserted additional claims of service connection for a stomach condition and diarrhea. As these issues have not been developed for appeal, they are once again referred back to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. At no time since service has the veteran demonstrated a level of impairment of his right or left knee consistent with no more than a functional limitation of flexion greater than 45 degrees or extension to 10 degrees; recurrent subluxation or lateral instability has also not been demonstrated. 3. At no time since service has the veteran demonstrated a level of functional impairment of his right or left ankle consistent more than a moderate limitation of motion. 4. At no time since service has the veteran's service- connected psoriasis been shown to have been demonstrated by a skin disability manifested by more than exfoliation, exudation or itching involving an exposed surface or extensive area; constant exudation or itching, extensive lesions or marked disfigurement has not been shown. CONCLUSION OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for the service-connected arthritis of the right knee and arthritis of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.41, 4.71a including Diagnostic Codes 5003, 5260, 5261 (1999). 2. The criteria for an initial evaluation in excess of 10 percent for the service-connected arthritis of the right ankle and arthritis of the left ankle have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.41, 4.71a including Diagnostic Codes 5003, 5271 (1999). 3. The criteria for an initial evaluation in excess of 10 percent for the service-connected psoriasis have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.7, 4.20, 4.118, Diagnostic Code 7806, 7816 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claims are plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran claims that a service-connected disability is more severely disabling than as rated, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Shipwash v. Brown, 8 Vet. App. 218 (1995). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all available relevant evidence has been obtained regarding the claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). I. Background The veteran was initially afforded a VA examination of his joints in February 1994. At that time, the veteran reported a history of long standing complaints of bilateral knee pain, right worse than left, and injury to both ankles during military training. He complained of persistent pain in both ankles since injury, with a tendency to twist the ankles on uneven ground. An examination of the right and left knee was reported to be unremarkable. There was full range of motion (extension to 0 degrees and flexion to 140 degrees) with no areas of localized tenderness, effusion, deformities, crepitus or demonstrable joint instability. An examination of the right and left ankle was also noted to be unremarkable. There was full range of motion (dorsiflexion to 10 degrees and ankle plantar flexion to 45 degrees) without pain, and the veteran was able to walk on his heels and toes and with his feet everted and inverted without difficulty. There was also no evidence of effusion, joint instability or deformity in either ankle. In summary, a normal examination for both the ankles and the knees. As a result, the examining physician diagnosed diffuse arthralgias involving the knees and ankles, without objective abnormal findings, and possible diffuse myofibrositis. Diagnostic studies performed in conjunction with the examination showed bilateral moderately advanced hypertrophic osteoarthritis of the knees and moderately- advanced degenerative joint disease involving the right ankle, with some mild degenerative joint disease involving the left ankle. A General Medical examination performed in February 1994 revealed typical squamous plaques of psoriasis at extensor aspects of the elbows, popliteal regions and both flanks. Hence, a diagnosis of diffuse psoriasis, relatively mild, was rendered. In a rating decision dated in June 1994, the RO granted service connection for arthritis of the knees and ankles and assigned separate ratings of 10 percent, effective on January 1, 1994. In addition, the RO granted service connection and assigned a noncompensable rating for psoriasis, effective on January 1, 1994. In January 1995, the veteran filed a Notice of Disagreement expressing dissatisfaction with the initial evaluations assigned to these service-connected disabilities. In February 1996, the veteran was afforded a second examination of his skin. At that time, it was noted that the veteran had a five-year history of psoriasis that waxed and waned without known exacerbating factors. His subjective complaints including itching during flare-ups. The examination revealed pink, annular/ovoid, thin plaques with minimal overlying scale on the right flank, the gluteal cleft/buttock and the forearms. The final diagnosis was that of psoriasis involving 2 percent of the body. Subsequent to the examination of his skin, the veteran testified at a hearing a the RO in March 1996 that, although medication relieved his psoriasis somewhat on his elbows, sides and back, it never fully went away. He reported flare- ups occurring one to two times per month and symptoms including flaking, bleeding, oozing and constant itching. He noted that he normally wore long sleeved shirts in order to avoid the embarrassment caused by his inflamed skin. In May 1996, the RO assigned a 10 percent rating for his service-connected psoriasis, effective on January 1, 1994. The appellant is generally presumed to be seeking the maximum available by law, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Consequently, as the claim has not been formally withdrawn by the veteran, it remains on appeal for consideration by the Board. With regard to the initial rating assigned to the service- connected arthritis of the knees and ankles, the veteran was afforded a second VA examination of his joints in March 1996. At this time, he reported occasional pain in both knees and ankles. He described the pain as dull and aching, increasing with activity and relieved with rest and occasional Tylenol or Motrin. The examination revealed the veteran to ambulate without difficulty. He was able to heel and toe walk without problems and his gait was normal in cadence and rhythm. An examination of the knees revealed no evidence of swelling, Lachman, anterior or posterior drawer or gross instability with varus or valgus stress. Range of motion was recorded as being 0 to 120 degrees, bilaterally. The examination of the ankles also revealed no evidence of swelling or instability and good pronation and supination. Range of motion was reported as 20 degrees of dorsiflexion and 30 degrees of plantar flexion, bilaterally. The final impression was that the veteran had mild degenerative joint disease of all three compartments in both knees, mild to moderate degenerative joint disease of the left ankle, talar joint and subtalar joint, and minimal arthritis of the left ankle, tibial talar and subtalar joint. As noted hereinabove, the Board remanded this matter in April 1999 for additional development of the record, to include VA examinations of his service-connected disabilities. The veteran was afforded a VA examination of his skin in May 1999. At that time, examination revealed the veteran to have erythematous plaques without scale in his bilateral elbows and in his intragluteal cleft. There was also postinflammatory hyperpigmentation on his bilateral flanks. Body surface area stated to be occupied was approximately 2 percent. The final diagnosis was that of psoriasis, mild. VA examination of the joints was offered in June 1999. His complaints at the time included constant, aching pain in both knees, especially in the front part of each knee, as well as constant, aching pain in both ankles. The right ankle was also noted to be prone to swelling, especially in winter. On examination, the veteran's gait pattern was noted to be normal with no antalgia. He was noted to have the ability to heel and toe walk and perform a partial knee bend and rise. Measurement of the knees at mid-patella in partial flexion revealed the same circumference. The calves were also noted to have the same circumference measured at three inches below the tibial tubercles. There was discomfort associated with vertical compression of the patella in both knees, as well as with palpation of the undersurface of the knee caps, right greater than left. There was also mild to moderate discomfort to palpation about the medial aspect of the right knee, especially the posteromedial aspect of the medial joint line, with similar, but less marked tenderness demonstrated about the medial aspect of the left knee. In addition, there was mild crepitus during passive motion of each knee cap; however, there was no crepitus on active motion. The knees were further noted to be stable to varus/valgus stress, and anterior and rotatory stress. McMurray's sign was absent, and Lachman's maneuver and anterior drawer sign at 90 degrees of flexion were negative on each side. Range of motion testing demonstrated motion of the right knee to 130 degrees and motion of the left knee to 140 degrees. X-ray studies of the knees performed in conjunction with the examination suggested slight medial and lateral compartment osteoarthritis in the left knee and mild osteoarthritic changes in all three compartments of the right knee. The examination of the veteran's ankles and feet revealed obvious lateral thickening of the distal fibula and some lateral ankle edema (which is contradictory to a later statement by the examining physician). The right ankle was 14 inches measured at its greatest point around the malleoli with the left ankle being 121/2 inches. The feet were the same circumference measured at the metatarsal necks. No ankle or foot edema was noted. Both feet were pink, warm and dry, with no breakdown of skin and no abnormal callosities. The feet were plantar grade. There was a slight increase in the medial, longitudinal notch on each side causing a very slight cavus deformity of each foot. There was also slight hammering (flexion) at the proximal interphalangeal joint of the lesser toes of each foot. There was a deformity about the right ankle which included a lateral bony prominence consistent with widening of the intermalleolar distance with lateral displacement/fixed deformity of the distal fibula and lateral malleolus. There was slight synovitis about the right ankle and slight soft tissue fullness surrounding the right lateral malleolus. The right ankle was stable to varus, valgus and anterior stress and demonstrated negative drawer signs. In addition, there was no crepitus during ankle motion. There was no obvious deformity about the left ankle. There was no synovitis about the ankle joint or the small joints of the left foot. The Achilles tendon, peroneal tendons and the posterior and anterior tibial tendon were intact and functioning with normal strength. There were no abnormal callosities about either foot. There were strong dorsalis pedis pulses and posterior tibial pulses. There were no forefoot deformities. Range of motion testing revealed dorsiflexion to 20 degrees, plantar flexion to 45 degrees, foot inversion to 30 degrees, and foot eversion to 20 degrees, bilaterally. The final diagnoses rendered included: osteoarthritis of both knees; osteoarthritis of both ankles; healed fracture with malunion of the right talus; and, deformity of the distal right fibula due to possible (healed) prior fracture. The examining physician further noted that, based on his review of the claims file, the veteran's osteoarthritis affecting his knees and ankles was no different than that demonstrated at previous examinations. The veteran's representative subsequently submitted a request to have the veteran re-examined due to the alleged inadequacy of the most recent VA examinations. As a result, the RO scheduled the veteran for additional VA examinations to take place in December 1999. As evidenced by a report of contact form dated on December 8, 1999, the veteran questioned the scheduling of further examinations and indicated that he was unable to keep any future appointments as he could not miss work. The veteran failed to report to the scheduled examinations; consequently, these original claims will be rated based on the evidence of record. 38 C.F.R. § 3.655(b) (1999). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's 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. Where there is a question as to which of two evaluations is to 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. VA regulations require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of disability. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. Functional impairment is based on lack of usefulness and may be due to pain, supported by adequate pathology and evidenced by visible behavior during motion. Many factors are for consideration in evaluating disabilities of the musculoskeletal system and these include pain, weakness, limitation of motion, and atrophy. Painful motion with the joint or periarticular pathology which produces disability warrants the minimum compensation. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59. A. Knees The veteran's right and left knee disorders are currently rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260. 38 C.F.R. § 4.71a, Diagnostic Code 5003 establishes, essentially, three methods of evaluating degenerative arthritis which is established by x-ray studies: (1) when there is a compensable degree of limitation of motion, (2) when there is a noncompensable degree of limitation of motion, and (3) when there is no limitation of motion. Generally, when documented by x-ray studies, arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasms, or satisfactory evidence of painful motion. Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by x-ray study, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no compensable limitation of motion. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991), Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). A noncompensable rating on the basis of limitation of motion of the knees is assigned if flexion of the leg is limited to 60 degrees or extension is limited to 5 degrees. A 10 percent evaluation requires limitation of extension to 10 degrees or limitation of flexion to 45 degrees; a 20 percent evaluation is warranted for limitation of extension to 15 degrees and limitation of flexion to 30 degrees; and a 30 percent rating is warranted if flexion is limited to 15 degrees or extension is limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Full range of motion of the knee is measured from 0 degrees to 140 degrees in flexion and extension. 38 C.F.R. § 4.71, Plate II. Without regard to the veteran's complaints of pain, disability due to limitation of motion of the knees would not be compensable. Full range of motion was demonstrated in February 1994; examination in March 1996 demonstrated extension to 0 degrees and flexion to 120 degrees, bilaterally; and most recent VA examination in June 1999 showed extension to 0 degrees, and flexion to 130 degrees in the right knee and extension to 0 degrees and flexion to 140 degrees in the left. Thus, based strictly on the degrees of excursion, the Board finds that the veteran's disability picture does not meet the criteria for a compensable rating for limitation of motion. The Board must address whether the veteran's knee disabilities warrant compensation pursuant to 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination, or pain on movement of a joint. See DeLuca v Brown, 8 Vet. App. 202 (1995). The veteran's arthritis is documented by x-ray studies, and there is satisfactory evidence of pain associated with palpation of the knee joints. In light of this evidence, the Board finds that the level of functional loss more nearly approximates a level of impairment consistent with limitation of flexion to 45 degrees. The Board finds, therefore, that a rating of 10 percent is warranted for the demonstrated functional loss in the right and left knees pursuant to Diagnostic Codes 5003 and 5260, as well as 38 C.F.R. §§ 4.40, 4.45 and 4.59. At no time since service, however, has the veteran demonstrated a level of impairment of his knees consistent with a limitation of flexion to 30 degrees or a limitation of extension to 15 degrees. In the absence of such evidence of disability, the Board finds that the preponderance of the evidence is against a 20 percent initial rating for the veteran's right and left knee disorders. The Board notes that in July 1997, the Office of General Counsel of VA issued a Precedent Opinion which provided that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. O.G.C. Prec. 23-97 (Jul. 24, 1997). Under Diagnostic Code 5257, slight, recurrent subluxation or lateral instability of the knee is assigned a 10 percent disability rating. A 20 percent rating is assigned if there is moderate recurrent subluxation or lateral instability. Severe, recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As indicated hereinabove, the medical evidence indicates that the veteran has arthritis of both knees. Thus, a separate, compensable rating pursuant to Diagnostic Code 5257 may be warranted; however, in this instance, there is absolutely no medical evidence establishing that, at any time since service, the veteran has suffered from recurrent subluxation or lateral instability entitling him to a compensable evaluation under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board has considered whether the veteran was entitled to a "staged" rating for his service-connected knee disabilities as prescribed by the United States Court of Veterans Appeals in Fenderson v. West, 12 Vet. App. 119 (1999). As noted above, however, at no time since service, has the veteran demonstrated a level of impairment of his right and left knees consistent with a 20 percent evaluation for limitation of flexion or extension. The preponderance of the evidence is against the veteran's claim for a higher initial evaluation for his service- connected right and left knee disorders. B. Ankles The veteran's right and left ankle disorders are currently rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5271. Under Diagnostic Code 5271, a 10 percent evaluation is warranted for moderate limitation of motion of the ankle. 38 C.F.R. § 4.73, Diagnostic Code 5271. A 20 percent evaluation requires marked limitation of motion. An evaluation greater than 20 percent requires ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5270. The standardized range of motion for the ankle is plantar flexion to 45 degrees and dorsiflexion to 20 degrees. 38 C.F.R. § 4.71, Plate II. As noted above, 38 C.F.R. § 4.71a, Diagnostic Code 5003 establishes, essentially, three methods of evaluating degenerative arthritis which is established by x-ray studies: (1) when there is a compensable degree of limitation of motion, (2) when there is a noncompensable degree of limitation of motion, and (3) when there is no limitation of motion. Without regard to the veteran's complaints of pain, disability due to limitation of motion of the ankles would not be compensable. Slight limitation of motion was demonstrated on examination in February 1994 and March 1996, and full range of motion was registered on most recent examination in June 1999. Thus, based strictly on the degrees of excursion, the Board finds that the veteran's disability picture does not meet the criteria for a compensable rating for limitation of motion. However, given the fact that the veteran's arthritis of the ankles is documented by x-ray studies and there is satisfactory evidence of painful motion, the Board finds that the level of functional loss more nearly approximates a level of impairment consistent with moderate limitation of motion. The Board finds, therefore, that a rating of 10 percent is warranted for the demonstrated functional loss in the right and left ankles pursuant to Diagnostic Codes 5003 and 5271, as well as 38 C.F.R. §§ 4.40, 4.45 and 4.59. At no time since service, however, has the veteran demonstrated a level of impairment of his ankles consistent with a marked limitation of motion of the ankles. In the absence of such evidence, the Board finds that the preponderance of the evidence is against a 20 percent initial rating for the veteran's right and left ankle disorders. The Board has considered whether the veteran was entitled to a "staged" rating for his service-connected ankle disabilities as prescribed by in Fenderson. As noted above, however, at no time since service, has the veteran demonstrated a level of impairment of his right and left ankles consistent with a 20 percent evaluation for marked limitation of motion. The preponderance of the evidence is against the veteran's claim for a higher initial evaluation for his service- connected right and left ankle disorders. C. Psoriasis The veteran's service-connected psoriasis is currently rated as 10 percent disabling pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7816. Diagnostic Code 7816 provides that psoriasis is to be rated as for eczema under Diagnostic Code 7806. Under Diagnostic Code 7806, a 10 percent evaluation is warranted for exfoliation, exudation or itching involving an exposed surface or extensive area. A 30 percent evaluation requires constant exudation or itching, extensive lesions or marked disfigurement. Finally, a 50 percent evaluation is assigned for ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptional repugnance. 38 C.F.R. § 4.118, Diagnostic Code 7806. Based on a review of the evidence of record, the Board finds that at no time since service has the veteran's psoriasis been demonstrated by a level of impairment commensurate with constant exudation or itching, extensive lesions or marked disfigurement. Significantly, VA examinations in February 1994 and February 1996, revealed symptomatology consistent with a mild degree of psoriasis. Furthermore, VA examination in May 1999 essentially continued the assessment of the veteran's condition and noted that it was stable. The veteran has not submitted evidence of skin disability manifested by constant exudation or itching, extensive lesions or marked disfigurement. Consequently, an initial rating in excess of 10 percent is not warranted in this case. The Board has considered whether the veteran was entitled to a "staged" rating for his service-connected psoriasis as prescribed by the Court in Fenderson. As described above, however, at no time since service, has the veteran's psoriasis been demonstrated by constant exudation or itching, extensive lesions or marked disfigurement sufficient for a 30 percent evaluation. The preponderance of the evidence is against the veteran's claim for a higher initial evaluation for his service- connected psoriasis. ORDER An initial evaluation in excess of 10 percent for the service-connected arthritis of the right knee and arthritis of the left knee is denied. An initial evaluation in excess of 10 percent for the service-connected arthritis of the right ankle and arthritis of the left ankle is denied. An initial evaluation in excess of 10 percent for the service-connected psoriasis is denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals