BVA9504244 DOCKET NO. 94-16 276 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased rating for degenerative disc disease of the lumbar spine, currently evaluated as 10 percent disabling. 2. Entitlement to a compensable evaluation for traumatic arthritis of the right knee. ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from March 1953 to May 1957. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a June 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in San Diego, California. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO erred when it failed to grant a compensable evaluation for his right knee disability. He avers that it causes him pain and discomfort, and restricts his ambulation. Additionally, he maintains that the RO erred when it only assigned a 10 percent evaluation for his lower back problems. Because of limitation of movement caused by the back condition, he states that he should receive a higher rating. 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 an increased rating for a lower back condition. The preponderance of the evidence is also against a compensable evaluation for a right knee disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. The veteran experiences pain and discomfort in his lumbar spine, with slightly restricted range of motion 3. The veteran's right knee involves complaints of pain, but is without swelling, heat, or redness, limitation of motion, instability, crepitation, or continuous painful joint motion; he is able to squat, rise, and walk normally, without hesitation. 4. Neither an exceptional nor unusual disability picture has been presented so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Codes 5293 and 5292 (1994). 2. The criteria for a compensable evaluation for a right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Codes 5010 and 5257 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed and the obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. Id. The record reflects that, while in the U.S. Marine Corps, the veteran injured his right knee three different times and his back twice. He was diagnosed with intervertebral disc syndrome, herniated nucleus pulposus, L5-S1, and traumatic arthritis of the right knee. As a result of these disabilities, the veteran was found unfit for duty and was discharged. See Navy Medical Board Report, with attachments, March 27, 1957. The veteran was honorably discharged in May 1957. In September 21, 1992, the veteran applied for VA benefits. VA Form 21-526, Veteran's Application for Compensation or Pension, September 21, 1992. In support of his application, he submitted private medical records. The RO granted service connection for traumatic arthritis of the right knee and degenerative disc disease of the lumbosacral spine. VA Form 21-6796, Rating Decision, June 22, 1993. The RO assigned a noncompensable evaluation to each disability. 38 C.F.R. Part 4, Diagnostic Codes 5010, 5257, 5292, 5293 (1992). The veteran appealed that decision, claiming that both disabilities were more disabling than rated. The veteran was accorded a VA examination, and, after receiving the results of this medical examination, the RO increased the veteran's back disability rating to 10 percent. However, the RO maintained the noncompensable evaluation for his right knee condition. VA Form 21-6796, Rating Decision, March 10, 1994. I. Increased Evaluations Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1994). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59 (1994). A. Lumbar Spine In January 1994, the veteran was seen at the Loma Linda VA Medical Center for a Compensation and Pension Examination. VA Form 10-9043-CP, January 30, 1994. The examiner noted that the veteran's subjective complaints with respect to his low back included pain which was localized to the lower lumbar region and exacerbated with lifting, bending, or prolonged standing or sitting. The pain was generally relieved with getting up and walking around. The veteran also reported that the pain radiated into his buttock and posterior thigh. According to the veteran, he was unable to pick up anything greater than 35 pounds. The physician's report of the physical examination notes the following: OBJECTIVE FINDINGS: On physical examination of his spine, no scoliotic or kyphotic fixed deformity. No tenderness to palpation. He localizes his discomfort to the left lower lumbar region. There is no paraspinal muscle spasm. With forward flexion, he places his hands on his knees. Extension is 25 degrees, right bending is 30 degrees, left bending 15 degrees. Rotation is 30 degrees to the left, 40 degrees to the right. Mostly he stops due to left-sided low back pain. Straight leg raise on the right to 80 degrees and only causes discomfort because of tight hamstrings. There is no radicular pain, right or left. Flexion, abduction, external rotation, and extension test is negative. He has 5/5 motor strength, bilateral hip flexion, extension, abduction, adduction, knee flexion, extension, ankle dorsiflexion, plantar flexion, peroneals, and extensor halluces longus. He has 2+ and symmetric deep tendon reflexes of both the knees and ankles. There is no clonus, negative Babinski's, and pulses are 1+ dorsalis pedis and posterior tibialis. . . . . The x-ray report noted hypertrophic degenerative joint disease of the lumbar spine with narrowed L5-S1 intervertebral disc space. There was posterior bony spur formation at the adjoining terminal end plates at L5-S1 posteriorly. There was no evidence of a compression fracture; a moderate degree of osteoporosis was shown. The examiner diagnosed degenerative joint disease of the lumbar spine. The veteran's low back disability is rated under the diagnostic codes pertaining to limitation of motion and intervertebral disc syndrome. 38 C.F.R. Part 4, Diagnostic Codes 5292-5293 (1994). Under the criteria of 38 C.F.R. Part 4, Diagnostic Code 5292 (1994), slight limitation of motion of the lumbar segment of the spine warrants a 10 percent evaluation. Where there is moderate limitation of motion, a 20 percent evaluation will be assigned. A 40 percent evaluation requires severe limitation of motion. Per 38 C.F.R. Part 4, Diagnostic Code 5293 (1994), intervertebral disc syndrome is rated as follows: Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. 60 Percent Disabling Severe; recurring attacks, with intermittent relief. 40 Percent Disabling Moderate; recurring attacks. 20 Percent Disabling Mild. 10 Percent Disabling In support of his claim, the veteran has proffered private medical records dating from 1965 to 1992. These records show treatment for high blood pressure, a thyroid condition, and intermittent back problems, for the most part involving the cervical spine and attributed to an automobile accident in 1988. A private medical report in 1989 indicates that the veteran was undergoing rehabilitative back training and that he was no longer complaining of back pain and was able to resume the majority of his work tasks without discomfort. His remaining problem was noted to be cervical pain relieved by stretching. It was noted that mobility in his trunk, hips and lower extremities had increased substantially which contributed to the relief of his low back pain. While the veteran has been prescribed medication to relieve pain and reduce inflammation of the back, the records do not show that the veteran has been placed on any restrictions because of his back. The private medical records do not show muscle spasms on bending, or neurological defects, including sciatic neuropathy, or a negative ankle jerk. With respect to the range of motion of the veteran's low back, the Board concludes that there is no more than slight impairment. The Board compared the results of his latest physical examination at VA with the standards listed in the Physician's Guide for Disability Evaluation Examinations, pages 2-10 and 2-11 (ed. 1985). Normal range of motion of the lumbar spine, according to the Physician's Guide, is to 95 degrees with respect to forward flexion; the veteran flexed with his hands on his knees. The veteran is able to extend backward 25 degrees, with extension to 35 degrees designated as normal. With 40 degrees of lateral flexion considered normal, the veteran is able to bend 30 degrees to the right and 15 degrees to the left. With respect to rotation, with 35 degrees considered normal, the veteran is able to rotate 30 degrees to the left and 40 degrees to the right. Straight leg raising was limited by hamstring tightness. While there is an indication that forward flexion may be limited, in that the veteran placed his hands on his knees, the over-all limitation is not shown to be more than slight, with rotation, extension, and lateral bending to the right nearly normal. An evaluation under the provisions applicable to intervertebral disc syndrome, 38 C.F.R. § 4.71, Diagnostic Code 9293 (1994), contemplates symptoms compatible with sciatic neuropathy, including pain, muscle spasm, absent ankle jerk or other neurological findings. While there is evidence of pain on motion, the medical evidence does not show that the appellant has neuropathy, such as muscle spasm, sciatica or radiculopathy which would entitle him to a higher rating. Therefore, in accordance with 38 U.S.C.A. §§ 1155, 5107 (West 1991), and 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.10, Diagnostic Codes 5292 and 5293 (1994), we find that the veteran does not demonstrate symptomatology indicative of a moderately severe back condition or a condition which is more than slight. The veteran's complaints of pain and discomfort, in the absence of objectively shown more severe symptoms, appear to be contemplated in the 10 percent rating currently in effect. B. Right Knee With respect to the veteran's right knee disability, the VA examiner reported in January 1994 that the veteran complained of pain and that his knee "aches like a toothpick." He experienced pain most when he got up from a sitting position or sat down from a standing position, or climbed stairs. The frequency was described as intermittent. The veteran said that he might go five days without any trouble at all and then might have trouble for several days in a row. He generally did not have night pain. The objective findings noted by the examiner with respect to the right knee were the following: Examination of his right knee shows a well- healed, transverse scar anteriorly. He has range of motion from 0-140 degrees of flexion. There is no joint line tenderness. There is negative McMurrays, negative Lockman's, no instability of varus or valgus stress testing, no effusion, negative patellar grind, and no crepitus. . . . . DIAGNOSTIC DATA: . . .X-rays of his right knee show mild degenerative changes with 0 anatomical alignment to the femur and tibia. DIAGNOSES: . . .Right knee, mild degenerative arthritis. VA Form 10-9043-CP, January 30, 1994. The veteran's right knee disorder is rated under 38 C.F.R. Part 4, Diagnostic Codes 5010-5257 (1994). Slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment, and a 30 percent evaluation requires severe impairment. 38 C.F.R. Part 4, Diagnostic Code 5257 (1994). Arthritis due to trauma, substantiated by x-ray findings, is rated as degenerative arthritis. 38 C.F.R. Part 4, Diagnostic Code 5010 (1994). 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasms, or satisfactory evidence of painful motion. Diagnostic Code 5260 provides that where flexion is limited to 45 degrees, a 10 percent rating will be assigned, and where it is limited to 30 degrees, a 20 percent rating will be assigned. 38 C.F.R. Part 4, Diagnostic Code 5260 (1994). Diagnostic Code 5261 provides that where extension is limited to 10 degrees, a 10 percent rating will be assigned, and where it is limited to 15 degrees, a 20 percent rating will be assigned. 38 C.F.R. Part 4, Diagnostic Code 5261 (1994). Under 38 C.F.R. § 4.71a, Plate II (1994), a normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. These evaluations include an assessment of the impact of the disability on the veteran's daily life, including pain. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.10, 4.40, 4.45, Part 4, 5257, 5010, 5260, 5261 (1994). Where there is limitation of motion which is noncompensable, a 10 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. Part 4, Diagnostic Code 5003 (1994). The shoulder, elbow, wrist, hip, knee, and ankle are considered to be major joints for the purpose of rating disability for arthritis. 38 C.F.R. § 4.45, Part 4, Diagnostic Code 5002 (1994). The veteran has not complained of continuous pain in his right knee. While the veteran asserts that he takes daily pain medication, it does not appear that he has sought any additional treatment, especially physical therapy, for his right knee, despite his complaints of continuous and progressive pain. Examination of the knee has not shown subluxation or lateral instability. Ankylosis is not present, and there is no flexion restriction. The evaluation of the veteran's right knee provided by the VA and reported above showed a normal range of motion, from 0 degrees extension to 140 degrees of flexion, and does not warrant a compensable disability evaluation. See 38 C.F.R. Part 4, Diagnostic Codes 5260 and 5261 (1994). As noted above, when the limitation of motion is not to a compensable degree, a 10 percent disability evaluation may be assigned where there is x- ray evidence of arthritic involvement of two or more major joints; however, the veteran's right knee is only one major joint and, moreover, shows no limitation of motion. We would further note that the veteran's last VA medical examination did not indicate a limp due to the right knee; crepitus, swelling, and muscle spasms were not noted. Thus, while the veteran has occasional complaints of knee pain, the objective findings do not show abnormality which would support a compensable evaluation. Accordingly, the preponderance of the evidence is against the claim for an increased evaluation for a right knee disability. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.10, Diagnostic Codes 5010 and 5257 (1994). II. Extraschedular Evaluation Consideration has also been given to the potential application of the extraschedular evaluation provisions of 38 C.F.R. § 3.321(b) (1994). The evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Specifically, there has not been a demonstration of marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular criteria. ORDER 1. Entitlement to an evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine is denied. 2. Entitlement to a compensable evaluation for a right knee disability is denied. BETTINA S. CALLAWAY 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.