Citation Nr: 0005386 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-33 748A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to an increased evaluation for a right knee disability, currently rated 20 percent disabling. 2. Entitlement to an increased (compensable) evaluation for superficial phlebitis of the right leg. 3. Entitlement to service connection for a left knee condition claimed as secondary to a service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Cooper, Associate Counsel INTRODUCTION The veteran served on active duty from January 1969 to April 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 RO decision which denied an evaluation in excess of 20 percent rating for a right knee disability, denied a compensable rating for superficial phlebitis of the right leg, and denied secondary service connection for a left knee disability. The veteran was scheduled for a hearing before a member of the Board in November 1999; however, he failed to report. FINDINGS OF FACT 1. The veteran's right knee disability is manifested by no more than moderate instability, and arthritis with full extension to 0 degrees and slightly limited flexion of 90 degrees. 2. The veteran's superficial phlebitis of the right leg does not require medication and is currently manifested by only subjective complaints of pain. Persistent moderate swelling or intermittent aching and fatigue after prolonged standing have not been demonstrated. 3. The veteran has not submitted competent evidence to show a plausible claim for secondary service connection for a left knee condition. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 30 percent for a right knee disability have been met (i.e., 20 percent for instability plus 10 percent for arthritis with limited motion). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (1999). 2. The criteria for a compensable evaluation for superficial phlebitis of the right leg have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.31, 4.104, Diagnostic Code 7121 (1997 and 1999). 3. The veteran's claim for secondary service connection for a left knee condition is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty in the Army from January 1969 to April 1981. A review of his service medical records reveals that in April 1973, the veteran sustained an external rotation twisting injury to the right knee. The diagnosis was torn lateral meniscus, right knee. An arthrotomy and excision of the lateral meniscus of the right knee was performed in April 1973. A November 1979 record shows a diagnostic assessment of status post lateral meniscectomy with some lateral compartment arthritis. A February 1980 record reveals that the veteran complained of right leg pain with swelling. On separation examination in March 1981, a history of right knee osteoarthritis was noted. A well- healed right lateral meniscectomy scar was also noted. On VA examination in September 1981, the diagnosis was postoperative residuals of lateral meniscectomy of the right knee. X-rays showed right knee arthritis. In a November 1981 decision, the RO granted service connection for postoperative residuals of lateral meniscectomy of the right knee, with a 20 percent evaluation. Private medical notes dated from December 1984 to December 1985 show that the veteran injured his right knee after he slipped on some papers at work. A history of multiple knee surgery and superficial phlebitis was also noted. In January 1985, the veteran underwent arthroscopic surgery for internal derangement of the right knee. The postoperative diagnosis was mild degenerative arthritis of the right knee and chondromalacia. A March 1985 private hospital record reveals that the veteran underwent surgery for internal derangement of the right knee. The postoperative diagnosis was torn right medial meniscectomy. In July 1985, the veteran was admitted to a private hospital with a preoperative diagnosis of chondromalacia and degenerative arthritis of the right knee. He underwent arthroscopy and lateral release. A September 1985 private hospital discharge summary shows that the veteran was seen with complaints of pain and swelling in the right lower extremity. On examination, it was noted that there was edema of the right pretibial area. The right medial thigh was tender; however, no palpable cord was evident. He was admitted to the hospital with a presumptive diagnosis of thrombophlebitis of the right lower extremity; however, a venogram revealed no significant abnormality. The discharge diagnosis was superficial phlebitis and musculoskeletal pain secondary to degenerative joint disease. In an April 1986 decision, the RO granted service connection for superficial phlebitis with a 10 percent evaluation. On VA examination in September 1987, the veteran reported increasing right knee pain, periodic swelling and aggravation on prolonged standing or kneeling. Scars on the knee were nontender to palpation. Crepitation was felt within the soft tissue about the right knee. Full range of motion of the right knee was possible with discomfort noted on passive rotary movement. No undue laxity of the right knee ligaments was noted. The patella was freely movable. The left knee was not remarkable. The examiner noted a history of deep vein thrombosis of the right leg which was treated with a course of anticoagulants. It was noted that the veteran reported subjective signs of popliteal and upper calf pain. The diagnoses were right lower limb deep vein thrombosis, by history; residual of injury to the right knee and postoperative residual of four arthrotomies of the right knee; scars of the right knee; right knee strain associated with intermittent synovial irritation and synovitis of the right knee, and traumatic and degenerative arthritis of the right knee. In a December 1987 decision, the RO continued the 20 percent rating for the veteran's service-connected right knee disability. The RO determined that the findings did not support a compensable evaluation for superficial phlebitis of the right leg, and the rating was reduced to 0 percent. An August 1988 Board decision denied higher ratings for the right knee disorder and right leg superficial phlebitis. A July 1989 private hospital operative report shows that the veteran was admitted with a preoperative diagnosis of internal derangement of the right knee. He underwent a diagnostic arthroscopy and operative arthroscopy with debridement of the patellofemoral joint and partial lateral meniscectomy. The postoperative diagnosis was torn lateral meniscus, old repair to anterior cruciate ligament, status post previous medial meniscectomy, and chondromalacia patella. In an August 1996 letter, the veteran recounted his history of surgical procedures on his right knee since service and maintained that the evaluation for his right knee disability should be higher. He claimed that he had a left knee condition as the result of his service-connected right knee disability. In an April 1997 decision, the RO denied service connection for a left knee condition as secondary to the service- connected right knee disability. The evaluations for the right knee disability and right leg superficial phlebitis were continued. On VA examination in December 1997, the veteran denied any problems with his left knee. He said that he had severe problems with his right knee including multiple surgeries. He said that all of the cartilage in his knee joints was removed following two open surgeries and four arthroscopic surgeries. He related that he was unable to stand or walk for prolonged periods of time or participate in any physical activity. The veteran gave a history of Baker's cyst and intermittent swelling of the right knee. He stated that he was diagnosed with phlebitis and had pain in the thigh area. It was noted that he was not on medication for phlebitis and had no history of embolism in the past. Examination showed a normal gait. The right knee revealed multiple scars from arthroscopic surgery. No swelling was observed. Tenderness was noted in the lateral and medial aspect of the knee joint. No click or crepitus was heard. Range of motion testing revealed flexion of 90 degrees and extension to 0 degrees. Lachman's test was positive. The right leg had no varicose veins and no phlebitis was observed. The examiner noted that there was a small tender spot in the right medial aspect of the thigh were the veteran was diagnosed with phlebitis. Peripheral pulses were good. A Baker's cyst was noted on the posterior aspect of the right knee. The left knee was normal. X-ray studies of the right knee showed calcified Baker's cyst and osteoarthritis. The diagnoses were internal derangement and degenerative joint disease of the right knee; status post multiple surgeries with moderate residuals; Baker's cyst in the right knee; and superficial thrombophlebitis in the right thigh area. II. Analysis A. Increased Rating Claims The veteran's claims for increased ratings for a right knee disability and for superficial phlebitis of the right leg are well grounded, meaning plausible. The file shows that the RO has properly developed the evidence, and there is no further VA duty to assist the veteran with his claims. 38 U.S.C.A. § 5107(a). When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, it is the more recent evidence which is generally the most relevant in an increased rating claim, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. i. Right Knee Disability A knee impairment with recurrent subluxation and lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Code 5257. The RO has assigned a 20 percent rating for the veteran's right knee disability under Code 5257, which contemplates moderate recurrent subluxation or lateral instability. The most recent VA examination in 1997 revealed a positive Lachman's test (for lateral instability). The evidence as a whole shows no more than moderate right knee instability; severe recurrent subluxation or lateral instability is not demonstrated; and no more than the current 20 percent rating may be assigned under Code 5257. The veteran's right knee disability includes arthritis. Degenerative or traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate code, a rating of 10 percent is warranted for each major joint affected by limitation of motion. 38 C.F.R. § 4.71a, Codes 5003, 5010. A 0 percent rating is warranted for limitation of leg flexion when it is limited to 60 degrees, a 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted when it is limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5260. A 0 percent rating is warranted when leg extension is limited to 5 degrees, a 10 percent rating is warranted when it is limited to 10 degrees, a 20 percent rating is warranted when it is limited to 15 degrees, a 30 percent rating is warranted when it is limited to 20 degrees, and a 40 percent rating is warranted when it is limited to 30 degrees. 38 C.F.R. § 4.71a, Code 5261. Standard motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. As noted, the veteran is already assigned a 20 percent rating under Code 5257 for his right knee disability. Separate ratings for knee instability and for knee arthritis with limitation of motion are permissible. See VAOPGCPREC 9-98 and 23-97. Several medical records reveal X-ray evidence of arthritis of the right knee, and the most recent VA examination reflected right knee flexion of 90 degrees and extension to 0 degrees. There is slight limitation of flexion of the right knee (see 38 C.F.R. § 4.71, Plate II) even if such would not be rated compensable under limitation- of-motion Code 5260. The presence of arthritis of the right knee with at least some limitation of motion supports a separate 10 percent rating under Codes 5003-5010. There is no credible evidence that pain on use of the joint restricts motion to such an extent that the criteria for a rating higher than 10 percent would be justified based on arthritis with limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus, the veteran is entitled to an increased rating, to 30 percent, for his right knee disability (20 percent for instability plus 10 percent for arthritis with limitation of motion). The Board has considered the benefit-of-the-doubt rule in granting this benefit. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ii. Superficial Phlebitis of the Right Leg During the course of the veteran's appeal, the regulations pertaining to the cardiovascular system were revised. The veteran's superficial phlebitis of the right leg was initially evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7121 (effective prior to January 12, 1998). Under this code, a 10 percent rating is warranted for phlebitis or thrombophlebitis with persistent moderate swelling of the leg not markedly increased on standing or walking. In every instance where the schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. On January 12, 1998, the rating criteria for post-phlebitic syndrome of any etiology were revised and are found in 38 C.F.R. § 4.104, Diagnostic Code 7121. Under the revised code, a 0 percent rating is warranted for asymptomatic palpable or visible varicose veins. A 10 percent rating is warranted for intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery. As the veteran's claim for an increased rating for superficial phlebitis of the right leg was pending when the regulations pertaining to cardiovascular disorders were revised, he is entitled to the version of the law most favorable to him. Karnas v. Derwinski, 1 Vet. App. 308 (1990). Here, either the prior or current rating criteria may apply, whichever are most favorable to the veteran. At the most recent VA examination in 1997, the veteran reported pain in the thigh area but indicated that he is not on any medication for phlebitis. The examiner indicated that the right leg had no varicose veins and no phlebitis was seen. A small tender spot in the right medial aspect of the thigh was observed. The diagnosis was superficial thrombophlebitis in the right thigh area. Considering all of the evidence and the old rating criteria of Code 7121, the Board finds a compensable evaluation is not warranted. Persistent moderate swelling of the right leg has not been shown by the medical evidence of record. Although, the veteran has offered subjective complaints of right thigh pain, objective examination of his condition was essentially normal and he does not require medication for superficial phlebitis. Further, considering the new rating criteria of Code 7121, the medical evidence does not reflect intermittent edema or aching and fatigue in the right leg after prolonged standing as required for a compensable evaluation for phlebitis. Rather, the veteran's disability picture more nearly approximates the criteria for a 0 percent rating for superficial phlebitis. The preponderance of the evidence is against a compensable rating for superficial phlebitis of the right leg. Thus, the benefit-of-the-doubt rule does not apply, and the claim for a compensable rating must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Service Connection Claim Service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Secondary service connection may be granted for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Secondary service connection includes instances in which there is an additional disability of a non-service-connected condition due to aggravation by an established service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). The veteran claims service connection for a left knee condition which he asserts was caused by his service- connected right knee disability. His claim presents the threshold question of whether he has met his initial burden of submitting evidence to show that his claim is well grounded, meaning plausible. If he has not presented evidence that his claim is well grounded, there is no duty on the part of the VA to assist him with his claim, and the claim must be denied. 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136 (1994). For the veteran's claim for service connection to be plausible or well grounded, it must be supported by competent evidence, not just allegations. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In order for a service connection claim to be well grounded, it must be supported by competent evidence of a current disability (medical evidence of a diagnosis), competent evidence of incurrence or aggravation of a disease or injury in service (medical evidence or, in some circumstances, lay evidence), and competent evidence showing causality between service (or an established service-connected condition, in a claim for secondary service connection under 38 C.F.R. § 3.310) and a current disability (medical evidence). Libertine v. Brown, 9 Vet. App. 521 (1996); Caluza v. Brown, 7 Vet. App. 498 (1995); Grivois, supra; Grottveit v. Brown, 5 Vet. App. 91 (1993). It is neither claimed nor shown that service connection for a left knee disability is warranted on a direct basis. In the present case, the veteran has submitted no medical evidence indicating the current existence of a left knee disability. During the 1997 VA examination, the veteran denied left knee problems and the examiner noted that the left knee was normal. A present, medically diagnosed disability is a requirement for a well-grounded claim. Caluza, supra; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Even if there were a current diagnosis of a left knee disability, in order for the secondary service connection claim to be well grounded, it would have to be supported by competent medical evidence showing causality between the service-connected right knee disability and a current left knee disability. Libertine, supra; Caluza, supra; Grivois, supra; Grottveit, supra. In the present case, no such competent medical evidence of causality has been submitted. Although the veteran contends that he has a left knee disability and such is related to his service-connected right knee disorder, as a layman he is not competent to render an opinion regarding diagnosis or etiology of a disability, and thus, his statements in this regard do not serve to make the claim well grounded. Id.; Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As no competent medical evidence has been presented showing a current left knee disability, and there is no medical evidence linking any such disorder to his service-connected right knee condition, the claim for secondary service connection is implausible and must be denied as not well grounded. ORDER An increased rating to 30 percent (20 percent for instability plus 10 percent for arthritis with limitation of motion) for a right knee disability is granted. An increased (compensable) rating for superficial phlebitis of the right leg is denied. Service connection for a left knee condition is denied. L. W. TOBIN Member, Board of Veterans' Appeals