Citation Nr: 0006610 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 97-18 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased rating for residuals of a left knee injury, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States INTRODUCTION The veteran served on active duty from April 1943 to January 1946. The question at issue is on appeal from a January 1997 decision by the Detroit VA Regional Office which denied a compensable evaluation for the service-connected left knee disability. The case was remanded by the Board in January 1998 for development. In an August 1999 rating decision, the evaluation assigned for the disability on appeal was increased to 10 percent, effective November 1996, the date of claim. FINDING OF FACT Residuals of a left knee injury include flare-ups of pain with walking, relieved by rest and medication, degenerative changes, and minimal limitation of flexion. CONCLUSION OF LAW An increased rating for residuals of a left knee injury is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5061 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claims are plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well-grounded claim). The Board is satisfied that all relevant evidence has been obtained with respect to these claims and that no further assistance to the veteran is required in order to comply with the duty to assist mandated by statute. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 (1998), and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the service-connected disabilities at issue on this appeal. 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. The Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. at 58. The evidence in closest proximity to the recent claim is the most probative in determining the current extent of impairment. Id. Slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation; a 20 percent evaluation requires moderate impairment, while a 30 percent evaluation requires severe impairment. 38 C.F.R. § 4.71a, Code 5257. There is little evidence of any knee pathology that equates to, or more nearly approximates moderate knee impairment such as to warrant a 20 percent evaluation under Code 5257. At the time of the most recent VA examination in October 1998, the veteran denied instability and none was evident on clinical examination. Moreover, the range of motion of the left knee was nearly full. Normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71, Plate II (1998). Under Code 5260 of the rating schedule, a zero percent rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent evaluation is warranted when flexion is limited to 45 degrees; while a 20 percent rating may be assigned when flexion is limited to 30 degrees. Under Code 5261, a zero percent rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent evaluation is warranted when extension is limited to 10 degrees; while a 20 percent evaluation is for application when extension is limited to 15 degrees. Such restriction of range of motion of the knee joint is not remotely approximated in either knee, according to the examination findings of record. In October 1998, extension of the knee was full, while flexion was to 130 degrees. 38 C.F.R. § 4.7. Under Code 5003, moreover, degenerative arthritis (hypertrophic or osteoarthritis), established by X-ray findings, is rated on the basis of the limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. These 10 percent evaluations are combined, not added, under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Code 5003. Although the knee is a major joint for this purpose under 38 C.F.R. § 4.45(f) (1998), and although early arthritis has been visualized by X-ray examination, a 10 percent evaluation is not separately assignable under Code 5003 because the rule against pyramiding prohibits, except under very limited circumstances, rating the same service-connected disability under various diagnostic codes in order to artificially inflate the service-connected evaluation. 38 C.F.R. § 4.14 (1998). Rather, the diagnostic code is applied that best reflects the overall disability picture shown for the specific anatomical part involved. The service-connected evaluation is assigned that most accurately reflects the degree of functional impairment shown by the evidence of record. Nevertheless, the veteran's recent complaints of pain are similar to those considered in DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995) (1995). In DeLuca, the Court of Veterans Appeals held that in evaluating a service-connected joint disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court remanded the case to obtain a medical evaluation to determine whether pain significantly limited functional ability during flare-ups or when the joint was used repeatedly over a period of time. The Court also held that the examiner should be asked to determine whether the joint exhibited weakened movement, excess fatigability or incoordination. If feasible, these determinations were to be expressed in terms of additional loss of range of motion due to any weakened movement, excess fatigability or incoordination. Under a precedent opinion of the VA General Counsel, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are for application in this case, as the veteran's knee complaints may be rated under Code 5003 for limitation of motion. VAOPGCPREC 9-98. Precedent opinions of the General Counsel are binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991). However, there is no objective evidence of pain on range of motion of either knee such as to implicate the provisions of 38 C.F.R. § 4.40, which require that functional loss due to pain be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A compensable evaluation under Code 5003 and 38 C.F.R. § 4.59 may be assigned where there is painful motion with joint or periarticular pathology. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also Hicks v. Brown, 8 Vet. App. 417, 421 (1995) (under § 4.59, painful motion is considered limited motion even though a range of motion may be possible beyond the point when pain sets in). However, the absence of objective evidence of painful motion of the left knee on recent examination renders the provisions of 38 C.F.R. § 4.59 inapplicable in this case. Although arthritis has been visualized in the left knee, instability of the knee has not been demonstrated, and the range of motion of the left knee does not meet the criteria for a zero percent rating under the applicable diagnostic codes (5260 and 5261). Accordingly, separate compensable evaluations under codes 5003 for arthritis and 5257 for knee instability are not warranted because additional disability is not demonstrated. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); see VAOPGCPREC 9-98. Thus, the Board is left with consideration of the provisions of 38 C.F.R. § 4.45, which contemplates that "[p]ain on movement, swelling, deformity or atrophy of disuse," as well as "[i]nstability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing" are relevant considerations in evaluating joint disabilities. VAOPGCPREC 9-98. In October 1998, the veteran's left knee was not shown to be swollen or deformed on examination, nor was atrophy of disuse observed by the examiner. It is apparent, however, that the RO essentially considered the veteran's complaints of flare-ups of pain with walking and the 10 percent evaluation assigned was designed to take such functional loss into account. 38 C.F.R. § 4.40. Notably, the veteran is not receiving treatment for his left knee condition, albeit he takes medication for relief of pain. In reaching its decision, the Board also considered the report of an earlier VA examination in January 1996. The Board concludes, however, that the RO was correct in assigning a 10 percent evaluation, given the extent of the functional impairment evident on clinical examination. Accordingly, the Board is unable to conclude that an increased rating is warranted for the service-connected knee disability. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257. In addition, although the veteran's representative has requested yet another examination, the Board finds that the examination conducted in October 1998 was adequate to assess the extent of the disability in question and substantially complied with the Board's January 1998 remand. Stegall v. West, 11 Vet.App. 268 (1998). ORDER Entitlement to an increased rating for residuals of a left knee injury is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals