Citation Nr: 0007316 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-08 734A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an evaluation in excess of 20 percent for service-connected residuals of a left patelloplasty. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.M. Daley, Associate Counsel INTRODUCTION The veteran had service from November 1966 to October 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), located in Houston, Texas. The veteran requested a personal hearing in connection with his claim; however, he failed to report for a hearing scheduled in August 1999. See 38 C.F.R. § 20.704(d) (1999). FINDING OF FACT Residuals of a left patelloplasty result in some limitation of knee motion, crepitus, and degenerative changes, with subjective complaints of pain and functional loss. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for residuals of a left patelloplasty have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5262 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background In August 1976, the veteran underwent arthrotomy and patellar shaving for internal derangement of the left knee and an osteochondral fracture of the patella. A report of the surgical procedure was sent to an insurance company and the Industrial Accident Board, with notations as to the veteran's post-operative condition indicating good progress with residual chondromalacia. In a rating decision dated in April 1982, the RO established service connection for residuals of a left patelloplasty, evaluated as zero percent disabling, effective January 28, 1982. The RO noted service medical evidence of left kneecap dislocation, with recurrent complaints thereafter, necessitating patelloplasty. At the time of VA examination in February 1982, x-rays showed "few fragments inferior to patella." The diagnosis was "chondromalacia of the patella with loose bodies, symptomatic, chronic, mild at this time." Private medical records note that in May 1982, the veteran underwent arthroscopic surgery on his left knee for chondromalacia of the left patella and recurrent subluxation. The operation report notes clinical findings of subluxation of the left patella with malalignment. Private medical records reflect that the veteran presented with knee complaints in May 1990, after having sustained an injury to the left knee while on a job doing construction in February 1990. He gave a history of using a knee brace, which prevented him from having a buckling sensation in the knee. The veteran was tender over the patella and examination revealed significant patella femoral crepitus. There was no significant ligamentous laxity over the medial or lateral joint line. X-rays showed significant evidence of patellar dysplasia and maltracking, with osteophyte formation along the medial portion of the patella. The veteran was advised to find an occupation that would not require him to climb or squat or get in positions requiring acute knee flexion-type maneuvers. X-rays were interpreted as not showing any significant sequelae from the medial meniscectomy performed in 1976. Private records show that the veteran underwent arthroscopic examination of the left knee in June 1990, with debridement. A pathology report notes chronic synovitis. In January 1997, the RO received the veteran's claim of entitlement to an increased evaluation for his left knee disorder. In connection with such he presented for a VA examination in August 1997. The examination report includes note of a Workman's Compensation injury to the left knee in 1976, and arthroscopic surgeries in 1976 and 1982. The veteran reported being employ as a welder and stated that he occasionally took Tylenol for soreness in the anterior aspect of the left knee. He denied any locking, catching or giving way. He reported occasional swelling. Examination revealed no effusion. The veteran had a good range of motion with mild-to-moderate patellofemoral crepitus on range of motion. There was tenderness to palpation under the medial, more than the lateral, patellar facets. There were no medial or lateral joint line symptoms, no anterior or posterior instability, or any varus or valgus instability. An X-ray showed mild degenerative changes, primarily of the lateral patellofemoral joint, as well as some peaking of the tibial spine and what appeared to be narrowing of the medial joint space. The examiner indicated that the veteran's symptoms appeared to be well-controlled with anti-inflammatory medications and noted that the veteran remained gainfully employed in fairly heavy labor. A report of VA orthopedic treatment, dated in April 1998, notes tenderness at the lateral and medial patellar facets. The veteran had left knee motion from zero degrees to 130 degrees, with crepitus and pain on forward flexion. He was stable to varus and valgus testing. The diagnosis was arthritis of the left knee. In December 1998, the veteran presented for a VA orthopedic examination. He complained of pain primarily over the anterior aspect of the knee. He denied being on any anti- inflammatory medications. He reported some mild valgus pseudolaxity. No lateral instability symptoms were noted. The veteran reported occasional effusion and occasional episodes of giving way. He denied locking or catching. He stated that he worked until October of 1997 when he quit secondary to knee pain. He denied any work-related knee injuries. Examination revealed a mild antalgic gait on the left. The veteran had motion from full extension to 110 degrees of flexion. There was tenderness to palpation about the patellofemoral joint and some mild tenderness to palpation along the medial joint line. There was no obvious instability noted on anterior or posterior drawer or anterior Lachman's tests. No varus or valgus instability was noted. X-rays showed a moderate degree of degenerative change primarily in the medial and patellofemoral portions of the knee. The impression was degenerative joint disease of the left knee, status post surgery times four, with moderate degenerative change and moderate-to-severe symptoms. A VA orthopedic consultation record dated in January 1999 notes that the veteran's examination was "very irreproducible" and that the veteran "often flinches when nothing is done. He will react with pain to a maneuver then there will be no reaction just a few seconds later." Left patellofemoral crepitus was noted. Magnetic resonance imaging showed a post horn medial meniscus intrasusbtance tear and chondromalacia patella. The plan was to treat him with a brace. A progress note dated in May 1999 again notes that the veteran exaggerated examination finding on both knees. A patella apprehension test was positive. No McMurray's was noted. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2 (1999), which require the evaluation of the complete medical history of the veteran's condition. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part which becomes disabled on use must be regarded as seriously disabled. However, a little-used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40 (1999). The provisions of 38 C.F.R. § 4.45 and 4.59 (1999) contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. It is the intention of the rating schedule to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as at least minimally compensable. Id. Normal knee motion is from zero degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II (1999). Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261 (1999). Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is only limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. A 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. 38 C.F.R. § 4.71a, Diagnostic Code 5262 provides for disability evaluations based on impairment of the tibia and fibula. Where there is nonunion with loose motion, requiring a brace, a 40 percent evaluation is warranted. Where there is malunion with marked knee or ankle disability, a 30 percent evaluation is warranted. Malunion with moderate knee or ankle disability warrants assignment of a 20 percent evaluation, and with slight knee or ankle disability a 10 percent evaluation is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999) provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. VA's General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and a veteran also has limitation of knee motion which at least meets the criteria for a zero percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if a veteran does not meet the criteria for a zero percent rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997). Analysis In general, allegations of increased disability are sufficient to establish well-grounded claims seeking increased ratings. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In the instant case, there is no indication that there are additional records which have not been obtained and which would be pertinent to the present claim. He has been examined by VA and has been afforded opportunity to present evidence and argument in support of his claim. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran's left knee is currently evaluated as 20 percent disabling under Diagnostic Code 5299-5262. 38 C.F.R. § 4.27 (1999) provides that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. The veteran contends that a higher evaluation is warranted as he experiences severe knee pain. He argues that a physician has told him he will eventually need a total knee replacement. As set out above, Diagnostic Code 5262 provides for disability evaluations based on impairment of the tibia and fibula. To warrant in excess of 20 percent under that code, the evidence must show nonunion with loose motion, requiring a brace (for 40 percent), or malunion resulting in marked knee or ankle disability (for 30 percent). In this case, neither diagnostic x-ray evidence nor clinical evidence indicates that there is nonunion of the veteran's knee. Thus, the 40 percent criteria under Diagnostic Code 5262 have not been met. Malunion is suggested by historical notations in the file. For example, records dated in 1982 note "malalignment" and records dated in 1990 note "maltracking." The 20 percent assigned evaluation contemplates moderate knee disability resulting from malunion. The most recent examination report notes moderate degenerative knee changes and moderate-to- severe symptoms. The report of that examination, however, was significant for flexion limited only by 30 degrees and complaints of tenderness, without noting any instability, locking, catching or other objective manifestations. Also to be considered are the outpatient entries noting the veteran's symptom exaggeration. Furthermore, at the time of examination in January 1997, the examiner noted a good range of motion, only mild degenerative changes, and no instability and concluded that the veteran's symptoms were well controlled. When the objective symptomatology is considered in connection with notations as to the veteran's symptom magnification, the disability picture most nearly approximates the criteria for a 20 percent evaluation; that is, the veteran manifests no more than moderate disability resulting from malunion of his tibia and fibula at the patella. 38 C.F.R. § 4.7. Thus, a 30 percent evaluation under Diagnostic Code 5262 is not warranted. In Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Court set out that VA rating evaluation should include consideration of potentially applicable rating criteria, even when not raised by the veteran. Also, the Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, in this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In considering application of other diagnostic codes, the Board first notes that the currently assigned 20 percent evaluation is in excess of the maximum available under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (1999), pertaining to arthritis. Moreover, the competent evidence in the record does not show restrictions of left knee motion that are sufficient to warrant a higher evaluation under Diagnostic Codes 5260, 5261, supra. Finally, the veteran has not demonstrated any objective evidence of left knee instability to warrant consideration of 38 C.F.R. § 4.71a, Diagnostic Code 5257 or VAOPGCPREC 23-97. The Board has carefully reviewed 38 C.F.R. Part 4, but finds no diagnostic code more appropriate than Diagnostic Code 5262 for rating the veteran's disability. Finally, the Board notes that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") in DeLuca v. Brown, 8 Vet. App. 202 (1995), held that where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, the assigned evaluation is not predicated on a limited range of motion alone, and the provisions of 38 C.F.R. §§ 4.40 and 4.45, with respect to pain, do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). In any case, the VA examination and outpatient treatment notes reflect consideration of the veteran's complaints of pain and functional loss. The competent medical evidence does not demonstrate additional disability due to pain and the factors set out under 38 C.F.R. §§ 4.40, 4.45, 4.59. Here the Board again notes the 1999 outpatient notations relevant to symptom magnification, and also notes that despite his knee problems the veteran was able to work as a manual laborer for many years. He has reported taking Tylenol, if anything, for his pain. In sum, the preponderance of competent and probative evidence reflects no additional functional loss resulting from the veteran's left knee disability. 38 C.F.R. §§ 4.40, 4.45, 4.59. Rather, the veteran's service-connected left knee disability is manifested by some limitation of left knee motion, crepitus and pain resulting in no more than moderate disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Additionally, the Board does not find that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) (1999) is in order. The evidence in this case fails to show that the veteran's knee disability, in and of itself, now causes or has in the past caused marked interference with his employment, or that such has in the past or now requires frequent periods of hospitalization rendering impractical the use of the regular schedular standards. Id. In fact, at the time of examination in August 1997, the VA examiner noted that the veteran's left knee symptoms were well-controlled and that he was able to continue working in manual labor despite his knee complaints. The Board notes that despite the veteran's report of potentially required knee replacement, the competent medical evidence does not reflect such. The Board also acknowledges the veteran's report, at the time of examination in December 1998, of having to stop working secondary to knee pain. However, in connection with the same examination the veteran denied any work-related injuries, in clear contradiction to the evidentiary record. The veteran has offered no credible support for his contention that his knee pain interfered with his employment and necessitated that he stop working. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not in order. The Board also notes that the veteran's unemployability claim, based in part on knee complaints, was denied by the RO in a rating decision dated in September 1999 and to date he has not appealed that determination. See 38 C.F.R. §§ 20.200, 20.302 (1999). ORDER An evaluation in excess of 20 percent for service-connected residuals of a left patelloplasty is denied. JANE E. SHARP Member, Board of Veterans' Appeals