Citation Nr: 0002241 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-02 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an extension beyond May 1, 1997 of a temporary total disability rating for a period of post- operative convalescence under 38 C.F.R. § 4.30. 2. Entitlement to an increased evaluation for a left knee anterior cruciate ligament tear, to include a separate evaluation for arthritis, currently rated at 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nicholas M. Auricchio, Associate Counsel INTRODUCTION The veteran served on active duty from July 1992 to August 1994. This matter is currently before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The issue of entitlement to an extension beyond May 1, 1997 of a temporary total disability rating for a period of post- operative convalescence under 38 C.F.R. § 4.30 will be addressed in the remand that follows this decision since the Board has determined that additional development is warranted. The decision will address the issue of entitlement to an increased evaluation for a left knee disability, since this issue is not inextricably intertwined with the remand issue. Parker v. Brown, 7 Vet. App. 116 (1994); Holland v. Brown, 6 Vet. App. 443 (1994); Kellar v. Brown, 6 Vet. App. 157 (1994). FINDINGS OF FACT 1. A left knee anterior cruciate ligament tear is not productive of either recurrent subluxation or lateral instability or a limitation of flexion to 30 degrees, or a limitation of extension to 15 degrees. 2. The veteran's left knee arthritis is not productive of a limitation of flexion to 30 degrees, or a limitation of extension to 15 degrees. CONCLUSIONS OF LAW 1. The scheduler criteria for an evaluation in excess of 10 percent for a left knee anterior cruciate ligament tear are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5257, 5260, 5261 (1999). 2. The criteria for a separate 10 percent evaluation for left knee arthritis are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260, 5261 (1999); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service connection was granted for a left knee anterior cruciate ligament tear in September 1996 and a 10 percent evaluation was assigned. In the appealed November 1997 rating decision, an increased evaluation was denied for the veteran's left knee disorder. A July 1996 VA outpatient treatment record indicated physical findings of instability, intermittent effusion, positive Lachman's, and positive pivot shift. The diagnosis was left anterior cruciate ligament deficient knee. He was again diagnosed with a left anterior cruciate ligament deficient knee in November 1996. VA outpatient treatment records, dated from March to November 1997, reveal that the veteran was treated for residual infection from a March 1997 left anterior cruciate ligament reconstruction. On VA examination in August 1996, the veteran reported a history of sustaining an injury in July 1993 secondary to slipping on some oil on the deck of a ship while on duty on the USS Dubuque. He stated that this resulted in his left knee slipping out of joint secondary to that fall, resulting in a lateral cruciate ligament tear. His current complaints included that his left knee went out and swelled at times and he had decreased activities of daily life, such as walking and inability to bend down and lift items. He claimed he was unable to perform his job as a deli worker at a grocery store. On physical examination of the left knee, there was no evidence of any atrophy, swelling or signs of inflammation at that time. Strength in his knee was 5/5 throughout as compared to his right knee. He had full range of motion of both legs with a 125-degree range of motion of left knee flexion. He could fully extend his left leg. There was no hyperextension. There was a positive left anterior drawer sign with approximately a 3 to 5 centimeter slippage of his tibia from his knee joint. The lateral and medial cruciate ligaments appeared to be stable at that time. There did not appear to be any extrusion of cartilaginous material. The impression was that the veteran sustained an anterior cruciate ligament tear that did cause him to have some limitation in his ability to use his left knee. In March 1997, the veteran received VA hospitalization for a medial meniscectomy and anterior cruciate ligament reconstruction. Physical findings included that the veteran's left lower extremity had mild quadricep atrophy. He had a positive Lachman's test, positive pivot shift and a positive McMurray's sign. He had appreciable tenderness on the medial aspect of the left knee joint. The diagnoses were left anterior cruciate ligament tear and left medial meniscus tear. In a November 1997 VA hospitalization report, the veteran was reported to have undergone surgery for an implant removal with incision and drainage of the left knee. Left knee range of motion was from 0 to 120 degrees. The preoperative diagnosis was nonhealing wound on the anterior left knee status post left anterior cruciate ligament repair. The postoperative diagnosis was symptomatic metal. On VA examination in January 1998, the veteran stated that he had intermittent left knee pain and swelling, but the pain became much worse after he left the Navy. Subsequently, he stated that the pain and swelling got so bad that had slipping in the knee, pain and stiffness, especially after a long drive or even sleeping at night. He stated that after arising, he would have stiffness and pain in the knee. He underwent arthroscopic knee surgery in March and November 1997. He reported that the pain he had prior to the surgery was minimally decreased, but he had increased swelling in the knee at times. He also stated that it was extremely painful to sleep and that he had increased knee twitching. He also had decreased sensation in the lateral aspect of the knee. The veteran indicated that he had decreased recreational activity secondary to the knee problem. He was not able to run, jump, or do things he normally did prior to the surgery or the accident. On physical examination, there was full range of motion of the knees in both flexion and extension to 140 degrees without pain. There was no crepitation, effusion, erythema, or warmth noted over the knees. There was no laxity in the anterior and the posterior cruciate ligaments. There was no tenderness over the meniscus. The veteran did have decreased pinprick sensation to the lateral aspect of the left knee. The diagnosis was left knee pain. A prior April 1997 VA X-ray study showed that the veteran had a status post anterior cruciate ligament reconstruction. There was a large joint effusion present. There were minimal degenerative changes seen in the medial compartment and, in the lateral views, there was a faint density projecting superior to the posterior aspect of the tibia plateau suggesting an osteochondral intra-articular fragment or possible heme from the surgery. The knee was in anatomical alignment. An October 1997 X-ray study was reported to have revealed an anterior cruciate ligament repair with metallic screws in the distal femur and proximal tibia and there was no joint effusion noted. Analysis As a preliminary matter, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (Court) has held that an allegation that a service- connected disability has increased in severity is sufficient to render the claim well grounded. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board is also satisfied that all relevant facts needed to adjudicate a scheduler evaluation of the veteran's service-connected disorder have been properly developed, and that no further assistance to the veteran is required on this issue to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1998). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). When, after careful consideration of all the evidence of record, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3 (1999). Under Diagnostic Code 5003, 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. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, knee flexion limited to 45 degrees warrants a 10 percent evaluation and flexion limited to 30 degrees warrants a 20 percent evaluation. Under Diagnostic Code 5261, a 10 percent evaluation is warranted for limitation of extension to 10 degrees and a 20 percent evaluation is warranted for limitation of extension to 15 degrees. 38 C.F.R. § 4.71a. According to Diagnostic Code 5257, slight recurrent subluxation or lateral instability of the knee warrants a 10 percent evaluation. A 20 percent evaluation is warranted for moderate recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. A. Anterior Cruciate Ligament Tear In the present case, the Board is of the opinion that an increased evaluation for the veteran's left knee anterior cruciate ligament tear is not warranted. In this respect, the evidence, including the January 1998 VA examination, does not reveal that flexion of either knee is limited to 30 degrees, or that extension of either knee is limited to 15 degrees. Further, neither instability nor subluxation impairs either knee. Indeed, the Board finds that the evidence shows the veteran's symptoms are limited to complaints of left knee pain, and the January 1998 VA examiner indicated that there was no objective evidence of atrophy, wasting, or fasciculation. There was also full knee range of motion in both flexion and extension to 140 degrees without pain. Additionally, there was no crepitation, effusion, erythema, or warmth over the knees. There was no laxity in the anterior and posterior cruciate ligaments and no tenderness over the meniscus. The Board has also considered the August 1996 VA examination report which indicates that the veteran had a positive left anterior drawer sign with approximately a 3 to 5 centimeter slippage of the tibia from his knee joint. However, in light of the veteran's March 1997 VA hospitalization for a left medial meniscectomy and anterior cruciate ligament reconstruction, this problem was apparently corrected as the January 1998 VA examiner found no laxity in the left knee. Hence, an increased evaluation is not warranted based on there being no current evidence of either recurrent subluxation or lateral instability, limitation of motion, or functional loss during claimed flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59, Diagnostic Codes 5257, 5260 and 5261. Accordingly, the Board concludes that the preponderance of the evidence is against an increased evaluation for the veteran's left knee anterior cruciate ligament tear. B. Left Knee Arthritis The Court has held, however, in the case of Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), that "painful motion of a major joint . . . caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10-percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." Further, as stated by the VA's Office of the General Counsel in a 1997 Precedent Opinion, a claimant who has both arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257. As the plain terms of those Codes suggest that they apply to different disabilities or at least to different manifestations of the same disability, ". . . the evaluation of knee dysfunction under both codes would not amount to pyramiding under section 4.14". VAOPGCPREC 23-97 (O.G.C. Prec. 23-97); 62 Fed.Reg. 63604 (1997). The Board has concluded that the veteran is currently not entitled to a separate disability rating for painful left knee arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a. In this respect, the January 1998 VA examiner indicated that an April 1997 X-ray study revealed left knee minimal degenerative changes. However, the most recent examination report shows full motion without pain. There is no instability shown. Although arthritis was visualized on X-ray of the left knee, absent a showing of painful motion, and/or instability, a separate rating for arthritis is not warranted since additional disability is not shown. See VAOPGCPREC 23-97 (July 1, 1997). In denying an increased rating for the veteran's left knee disorder, the Board considered the provisions of 38 C.F.R. §§ 4.40 and 4.45, as interpreted in DeLuca v. Brown, 8 Vet. App. 202 (1995). Significantly, however, with respect to Diagnostic Codes 5260 and 5261, there is no evidence of loss of function during claimed left knee flare-ups. Further, the Board has evaluated the veteran's left knee disorder under the diagnostic code for recurrent subluxation or lateral instability. As Diagnostic Code 5257 is not predicated on loss of motion, 38 C.F.R. §§ 4.40 and 4.45 are not for application. Accordingly, these regulations do not provide a basis for an increased rating for the veteran's service- connected left knee disorder. In reaching the above decision the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, as this disorder is not shown cause a marked interference with employment, require frequent hospital treatment, or to otherwise be so unusual as to render application of the regular schedular provisions impractical, there is no basis for an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (1999). ORDER A rating in excess of 10 percent for a left knee anterior cruciate ligament tear is denied. A 10 percent disability rating for left knee arthritis is denied. REMAND After reviewing the claims file the Board finds that additional development is in order with respect to the veteran's claim of entitlement to an extension beyond May 1, 1997 for a temporary total disability rating for a period of post-operative convalescence under 38 C.F.R. § 4.30. Specifically, he claims that he developed an infection in his left knee due to his March 1997 surgery for his service- connected left knee disorder, requiring a total period of 10 months for recuperation in which he was unable to work. In a September 1997 rating decision, the veteran was granted a 100 percent evaluation for his service-connected left knee disorder for the period from March 18, 1997 to May 1, 1997 based on surgical or other treatment necessitating convalescence. VA outpatient treatment records, dated from March to November 1997, reveal that the veteran was treated for residual infection from the March 1997 left anterior cruciate ligament reconstruction. In April 1997, he was treated for a post- operative left knee infection. There was a collection of subcutaneous fluid with thick drainage. The diagnosis was subcutaneous abscess. In a subsequent April 1997 VA outpatient treatment, he was diagnosed with a left knee inflammatory effusion. In early May 1997, 40 cubic centimeters of fluid were drained off under sterile condition. The fluid was cloudy and there was no pain. The diagnosis was status post-anterior cruciate ligament with sterile inflammatory fluid. The VA outpatient treatment records are silent for treatment of the veteran's left knee disorder for the remaining part of May through September 1997. However, in October 1997, he was treated for an abscess on the anterior/inferior knee. The diagnosis was stitch abscess. In a subsequent VA outpatient treatment record, there was reported to be minimal drainage from the anterior knee. The diagnosis was, healing. Later in October 1997, the stitch had slight purulent drainage. The diagnosis was again stitch abscess. In the last VA outpatient treatment record from October 1997, the veteran had drainage from the left knee wound. The diagnosis was infected right knee wound. In November 1997, there was a small open left knee skin wound. The diagnosis was infected left knee wound. In a November 1997 VA hospitalization report, the veteran was noted to have undergone surgery for an implant removal with incision and drainage of the right knee. Left knee range of motion was from 0 to 120 degrees. The preoperative diagnosis was nonhealing wound anterior left knee status post left anterior cruciate ligament repair. The postoperative diagnosis was symptomatic metal. In VA outpatient treatment records subsequent to the surgery in November 1997, the veteran was treated for a status post infected screw/suture removal six days previously. The incision was clean with slight drainage. There was full active range of motion at the knee. The diagnosis was left knee status post-infected screw/suture removal. In a final November 1997 VA outpatient record, the incision was healing well from the status post anterior cruciate ligament screw removal. There were no complaints. The diagnosis was left anterior cruciate ligament reconstruction. On consideration of the above medical evidence, the Board finds that further development is in order. In this respect, as all of the veteran's VA outpatient treatment records do not appear to be of record, in particular his VA outpatient treatment records, dated from early May through September 1997, the RO has the duty to request all pertinent medical records in the constructive possession of VA. See Bell v. Derwinski, 2 Vet.App. 611 (1992). The veteran should also be afforded a VA orthopedic examination in order to ascertain the severity of the veteran's post operative infected wound and whether this infected wound made the veteran unemployable. Therefore, this case is REMANDED for the following action: 1. The RO should contact the veteran and request that he identify any health care provider who has provided treatment for his left knee disorder to include post- operative complications resulting from his March 1997 VA surgery. If VA was the provider of choice, the specific medical center or outpatient clinic utilized must be identified. The RO is specifically requested to obtain any possible VA outpatient treatment records from early May through September 1997. Following receipt of the veteran's response appropriate action should be undertaken. 2. The veteran should be afforded a VA orthopedic examination, by a physician, to determine the nature and etiology of any right knee disorder. Since it is important that each disability be viewed in relation to its history, the veteran's claims folder and a copy of this REMAND, must be made available to and reviewed by the examiner prior to conducting the requested examination. The VA examiner, after reviewing the pertinent medical records, is specifically requested to describe the veteran's postoperative infected left knee wound that resulted from his March 1997 medial meniscectomy and anterior cruciate ligament reconstruction. Thereafter, the examiner is requested to offer an opinion as to whether it is at least as likely as not that the veteran's postoperative infected left knee wound that resulted from his March 1997 left knee surgery was considered severe. Finally, the VA examiner must offer an opinion as to whether it is at least as likely as not that the veteran's postoperative infected left knee wound that resulted from the March 1997 left knee surgery made the veteran unemployable at any time during the period from May 1, 1997 to January 18, 1998. The complete rationale for each opinion expressed should be set forth in a typewritten report. 3. For the requested examination the appellant must be given adequate notice, to include advising him of the consequences of failure to report for the examination. If he fails to report for the examination, this fact should be noted in the claims folder and a copy of the scheduling notice should be obtained by the RO and associated with the claims folder. 4. Following completion of the foregoing, the RO should review the claims file to ensure that all of the foregoing development has been completed in full, to include a review of the examination. If the requested development is not in complete compliance with the instructions provided above, appropriate action should be taken. Stegall v. West, 11 Vet. App. 268 (1998). Upon completion of the above development, the RO should readjudicate the issue on appeal. If any determination remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case, and be given an opportunity to respond. The purpose of this REMAND is to protect the appellant's right to due process and to fulfill the duty to assist. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). NADINE W. BENJAMIN Acting Member, Board of Veterans' Appeals