Citation Nr: 0002531 Decision Date: 02/01/00 Archive Date: 02/10/00 DOCKET NO. 99-11 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left knee disorder as secondary to service connected traumatic arthritis, right knee. 2. Entitlement to an increased rating for service connected traumatic arthritis, right knee, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Associate Counsel INTRODUCTION The veteran served on active duty from January 1986 to April 1987. This case comes before the Board of Veterans' Appeals (Board) from a rating decision of March 1999 from the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA), which confirmed and continued a 30 percent evaluation for traumatic arthritis, right knee, and denied entitlement to service connection for a left knee disability as secondary to the service connected traumatic arthritis of the right knee. It is noted that the appellant appeared at a hearing before the undersigned Member of the Board on November 22, 1999, at which time he testified with respect to the claims now at issue before the Board. A transcript of that hearing has been associated with the record on appeal. FINDINGS OF FACT 1. No medical evidence has been submitted to show that the veteran is suffering from a left knee disorder due to service or that any left knee disorder is related to a service- connected disorder, including traumatic arthritis of the right knee. 2. The appellant has not submitted evidence sufficient to justify a belief by a fair and impartial individual that the claim for service connection for a left knee disorder is plausible. 3. The veteran's right knee disorder is manifested by subjective complaints of constant pain, objective evidence of an altered gait favoring the right leg and an assessment of mild to moderate loss of function due to pain with a range of motion of 0 degrees extension and 95 degrees flexion. CONCLUSIONS OF LAW 1. The claim for service connection for a left knee disorder is not well grounded. 38 U.S.C.A. § 5107 (a) (West 1991). 2. The criteria for a rating in excess of 30 percent for traumatic arthritis of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.71a Diagnostic Codes 5003, 5010, 5257, 5258, 5260, 5261 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran contends that he is entitled to service connection for a left knee disability as secondary to his service connected right knee arthritis. He asserts that his left knee disability is due to an altered gait favoring the right leg. He further contends that he is entitled to an increased evaluation for his right knee disability. Service medical records reveal no evidence of treatment for left knee problems inservice, but specifically refer to treatment for right knee problems, currently diagnosed as traumatic arthritis for which he is presently service connected. Service connection for a left knee disorder on a direct basis has been previously denied by the RO in a final decision of June 1988. However, this present matter strictly concerns entitlement to service connection for a left knee disorder as secondary to the veteran's service connected right knee disorder, thus there is no need to consider whether new and material evidence has been submitted to reopen his claim for service connection for a left knee disorder on a direct basis. The veteran's right knee traumatic arthritis was adjudicated to be 30 percent disabling by the Board in a March 1997 decision. Medical evidence considered by the Board in this March 1997 decision concerning the right knee disorder, included the service medical records and a VA orthopedic examination report from January 1994. Findings from the January 1994 examination included the presence of cystic nodules on top of the patellae. Marked limitation of motion was recorded at the time, with both flexion and extension limited to 15 degrees. This report indicated that there was no swelling, but some atrophy of the muscles. Results from radiographic studies were noted to be negative. The diagnosis rendered in this report was traumatic arthritis of the right knee. VA treatment records revealed treatment for complaints of knee pain in November 1998, assessed as traumatic arthritis. The veteran requested something stronger than Voltarin for his knee pain. He was advised to undergo rheumatoid profiles and X-rays of both knees, for pain, rule out osteoarthritis but it is unclear whether he did so. The veteran was seen in January 1999 for sore right knee and shinbone, with no history of injury, no swelling and tenderness to palpation. In February 1999, the veteran was provided a VA orthopedic examination of both knees. At that time, the examiner noted a history of traumatic arthritis of the right knee and pain in the left knee of more recent onset. Regarding the right knee, he was noted to be service connected for traumatic arthritis since 1994 and claimed that the knee is much worse, gets stiff and pains more. The veteran noted that he was unable walk more than 1/4 mile. The pain was described as constant and graded it a 7 out of 10 (10 being the highest.) He was said to take nonsteroidal anti-inflammatory drugs. Certain things were said to make his knee pain go to 10/10, which lasts for a few minutes. The left knee was said to have been painful for about one year. He stated that it hurts from the knee down. He had had no studies, X-rays or examinations. He claimed that it is worse when it is cold or rainy. He was observed walking with a limp off of the right leg. He could heel-toe walk, but could only squat to 0 degrees. He was noted to have a lot of voluntary muscle resistance to the squat and range of motion. His bilateral knee joints were stable and there was no effusion or bony enlargement. The range of motion of the left knee was 0 degrees extension and 140 degrees of flexion. The range of motion of the right knee was 0 degrees extension and 95 degrees flexion. Once again there was a lot of quadriceps and hamstring resistance, which the examiner believed was voluntary. The examiner noted that the veteran was able to squat to 70 degrees times three. The medical opinion was that there was a mild to moderate loss of function due to pain. X-rays of both knees showed marked degenerative changes with chronic calcific tendonitis in the right knee and bilateral mild degenerative bone changes of the patella. The diagnoses were traumatic arthritis of the right knee and degenerative changes of the left patella. The medical opinion regarding the relationship of the right knee and left knee problems was that the examiner cannot really relate the left knee disability to the service connected right knee. At a hearing held in November 1999, the veteran testified that his right knee disorder restricts him from standing a long time, bending and that he is totally unable to drive. He asserted that he uses a brace on the right knee from time to time, and also walks with a cane. He testified that his physician advised him that his left knee disorder is due to the way he offsets his weight balance when favoring the right leg. He described his left knee pain as similar to his right knee pain. Service Connection for Left Knee Disorder--Analysis In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). Secondary service connection may be granted where a service connected disorder causes or aggravates another disorder. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). Significantly, to establish a well-grounded claim for service connection for a disorder on a secondary basis, the veteran must present medical evidence to render plausible a connection or relationship between the service-connected disorder and the new disorder. Jones v. Brown, 7 Vet. App. 134 (1994). Evidence submitted in support of the claim is presumed to be true for purposes of determining whether the claim is well-grounded. King v. Brown, 5 Vet App. 19, 21 (1993). However, lay assertions of medical diagnosis or causation do not constitute competent evidence sufficient to render a claim well-grounded. Grottveit v. Brown, 5 Vet App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Upon review of the evidence, the Board finds that the claim for service connection for a left knee disorder is not well grounded. There is no medical evidence of record that establishes a link between his left knee disorder and any service connected disorder, including his right knee disorder. The opinion from the examiner at the time of the February 1999 VA examination specifically indicated that a connection could not be made between the two knee disabilities. While the veteran has asserted that he was advised that there was a causal relationship between his nonservice connected left knee and service connected right knee problems, this lay assertion does not constitute competent evidence sufficient to render a claim well- grounded. See Grottveitt, Espirutu, Supra. As the veteran has not submitted a well grounded claim in this matter, there is no duty to assist. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Where a claim is not well grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation in Robinette, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claims well grounded. See also Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). Increased Evaluation for Right Knee-Analysis Initially the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented claims that are plausible. He has not alleged any records of probative value that may be obtained, and which have not already been associated with the claims file, are available. The Board accordingly finds that the duty to assist, as mandated by 38 U.S.C.A. § 5107(a) (West 1991) is satisfied. Service-connected disabilities are rated in accordance with a schedule of rating disabilities, which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Schedule for Rating Disabilities (Rating Schedule), 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). The disability ratings evaluate the ability of the body to function as a whole under the ordinary conditions of daily life including employment. As such, the ratings take into account such factors as pain, discomfort, and weakness in the individual rating. 38 C.F.R. §§ 4.10, 4.59 (1999). Evaluations are based on the amount of functional impairment; that is, the lack of usefulness of the rated part or system in self-support of the individual. 38 C.F.R. § 4.10 (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 for the higher rating. 38 C.F.R. § 4.7 (1999). Generally, all disabilities, including those arising from a single disease entity, are rated separately with the resulting ratings being combined. 38 C.F.R. § 4.25 (1999). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (1999). However, it is possible for a veteran to have separate and distinct manifestations from the same injury, which would permit rating under several diagnostic codes. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (where a veteran with a service-connected facial injury sought an increased rating, the veteran's disability was to be properly assigned compensable ratings under separate codes for disfigurement, tender and painful scars and muscle injury). In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1999). The medical history of the right knee disorder is detailed in the above factual background. While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran's right knee disorder is currently evaluated as 30 percent disabling. The RO and the Board in previous decisions have evaluated his knee disorder under Diagnostic Codes 5003, 5010, 5256, 5257, 5261 and 5262. Additionally 38 C.F.R. §§ 4.40 and 4.45 (1999) must also be considered in determining the extent of a knee disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, a VA General Counsel opinion indicates that 38 C.F.R. § 4.71a (1999) authorizes the possibility of multiple ratings under Diagnostic Code 5003 and Diagnostic Code 5257, in situations where the claimant has arthritis and instability of the knee, when the arthritis produces limitation of motion in addition to the instability contemplated by Diagnostic Code 5257. VAOPGCPREC 23-97. Diagnostic Code 5010 applies to traumatic arthritis and provides that such is rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion for the specific joint or joints involved. Where the limitation of motion of the specific joint or joints involved is noncompensable under the applicable diagnostic codes, a rating of 10 percent is warranted for each such major joint or group of minor joints. Limitation of motion must be objectively confirmed by evidence of swelling, muscle spasm, or painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999). Normal range of motion of a knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (1999). The 30 percent evaluation currently in effect is the maximum allowable evaluation under Diagnostic Code 5257 for other impairment of the knee and Diagnostic Code 5260 for limitation of flexion. For limitation of extension of the knee, an extension limited to 30 degrees is 40 percent and extension limited to 45 degrees is 50 percent. 38 C.F.R. Part 4, Diagnostic Code 5261 (1999). The evidence from the VA examination of February 1999 reveals a range of motion of the right knee which was 0 degrees extension and 95 degrees flexion. This is a full range of motion for extension and therefore a higher evaluation is not warranted under Diagnostic Code 5261. See 38 C.F.R. § 4.71, Plate II (1999). The February 1999 examination also revealed that the knee joint was stable and there was no effusion or bony enlargement. The examiner also commented that during the ranges of motion, there was quadriceps and hamstring resistance which the examiner believed was voluntary. Therefore, an increased evaluation, even with consideration under 38 C.F.R. §§ 4.40 and 4.45 and the possibility of multiple ratings in accordance VAOPGCPREC 23-97, is not warranted in this matter, as the veteran appears to have intentionally resisted the range of motion, rather than having a restriction of motion due to pain or instability of the knee or other objective findings of additional disability. The remaining applicable diagnostic codes that could allow for an evaluation above the currently assigned 30 percent evaluation are Diagnostic Codes 5256 and 5262. When the knee is ankylosed in flexion between 10 degrees and 20 degrees, a 40 percent evaluation is warranted. 38 C.F.R. Part 4, Diagnostic Code 5256 (1999). Because the record does not reflect that the veteran has ankylosis of the right knee, this diagnostic code is not applicable. Where there is an impairment of the tibia and fibula involving nonunion, with loose motion requiring a brace, the evaluation assigned is 40 percent. 38 C.F.R. Part 4, Diagnostic Code 5262 (1999). Because the record does not indicate that a malunion or nonunion exists between the tibia and fibula, this diagnostic code is not applicable. The Board has considered the testimony of the veteran from his January 1999 hearing, but finds that his testimony regarding the severity of his right knee disability is descriptive of a level of disability already contemplated by the 30 percent evaluation, and that the medical evidence of record is against a higher evaluation. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case that claim is denied. 38 U.S.C.A. § 5107(b) (West 1991). In this case, for the foregoing reasons and bases, the Board finds that the preponderance of the evidence is against an increased evaluation above the currently assigned 30 percent evaluation. Moreover, application of the extraschedular provisions is also not warranted in this case. 38 C.F.R. § 3.321(b) (1998). There is no objective evidence that this service- connected disability presents such an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under the above-cited regulation, was not required. See Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Service connection for a left knee disorder is denied on the basis that the claim is not well grounded. An increased rating for service-connected traumatic arthritis, right knee is denied. A. BRYANT Member, Board of Veterans' Appeals