Citation Nr: 0000863 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 96-14 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an increased initial rating for degenerative joint disease of the left knee, currently rated as 10 percent disabling. 2. Entitlement to an increased initial rating for degenerative joint disease of the right knee, currently rated as 10 percent disabling. 3. Entitlement to an increased initial rating for lateral instability of the right knee due to degenerative joint disease, currently rated as 10 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from October 1974 to October 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1996 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which awarded the veteran service connection for bilateral degenerative joint disease of the knees, with a 10 percent initial rating for each joint. The veteran filed a timely notice of disagreement concerning these rating determinations, and was sent a statement of the case. He then filed a timely substantive appeal, perfecting this appeal. A personal hearing before a member of the Board was afforded the veteran in May 1998. This appeal was first presented to the Board in May 1999, at which time it was remanded for additional development. In an August 1999 rating action, the RO awarded the veteran an additional separate rating of 10 percent for lateral instability of the right knee, due to degenerative joint disease. See 38 U.S.C.A. § 7104(c) (West 1991 & Supp. 1999); VAOPGCPREC. 23-97 (July 1, 1997). As this award arises out of the original grant of service connection for degenerative joint disease of the right knee, for which the Board retains jurisdiction, the Board thus also has jurisdiction over whether the appropriate rating has been assigned for the instability of the knee. 38 U.S.C.A. §§ 7104, 7105 (West 1991 & Supp. 1999). FINDINGS OF FACT 1. The veteran has degenerative joint disease of the left knee, confirmed by X-ray evidence. 2. The veteran's left knee displays limitation of extension to 5º, and limitation of flexion to 95º. 3. The veteran's degenerative joint disease of the left knee results in slight impairment due to lateral instability and recurrent subluxation. 4. The veteran has degenerative joint disease of the right knee, confirmed by X-ray evidence. 5. The veteran's right knee displays limitation of extension to 5º, and limitation of flexion to 105º. 6. The veteran's degenerative joint disease of the right knee results in moderate impairment due to lateral instability and recurrent subluxation. CONCLUSIONS OF LAW 1. An increased initial rating, in excess of 10 percent, is not warranted for the veteran's degenerative joint disease of the left knee. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.14, 4.20, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (1999). 2. A separate increased initial rating, of 10 percent and no higher, is warranted for the veteran's lateral instability and recurrent subluxation of the left knee, due to degenerative joint disease. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.14, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (1999). VAOPGCPREC. 23-97 (July 1, 1997). 3. An increased initial rating, in excess of 10 percent, is not warranted for the veteran's degenerative joint disease of the right knee. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.14, 4.20, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (1999). 4. An increased initial rating, of 20 percent and no higher, is warranted for the veteran's lateral instability and recurrent subluxation of the right knee, due to degenerative joint disease. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.14, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (1999). VAOPGCPREC. 23-97 (July 1, 1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background According to his service medical records, the veteran had a long history of bilateral knee pain during service. His case was reviewed by a medical evaluation board in January 1995, for which he was afforded a December 1994 military medical examination of the knees. His history of knee pain, right greater than left, for which he took anti-inflammatory medication, was noted. Upon examination, his knees were without warmth or hyperemia, but were positive for crepitus on range of motion. Range of motion was limited, but more specific findings were not reported. No effusion was present, and Lachman's test was negative. X-rays confirmed bilateral degenerative joint disease of the knees. The final diagnosis was of severe bilateral degenerative joint disease of the knees. The military evaluation board considered these findings, but concluded the veteran was fit for duty. However, the veteran accepted voluntary retirement that same year, and separated from service in October 1995. In November 1995, the veteran filed a claim for service connection for bilateral degenerative joint disease of the knees. A VA medical examination was afforded the veteran in December 1995. He reported bilateral knee pain, accompanied by occasional swelling and buckling of the joints. He reported taking anti-inflammatory medication for the pain. On objective physical evaluation, the veteran's gait was described as "waddling," and his knees displayed moderate effusion bilaterally. Range of motion testing demonstrated 5º extension and 130º flexion, with moderate crepitus, for both knees. No instability was evident in either knee. No pain or tenderness upon palpation was noted. X-rays confirmed degenerative changes in both knees. The final diagnosis was of bilateral degenerative joint disease, moderate in degree, of the knees. Based on these medical findings, the RO issued a February 1996 rating decision awarding the veteran service connection for degenerative joint disease of the right and left knees, with a 10 percent disability rating for each joint. The veteran filed a March 1996 notice of disagreement regarding these rating determinations, and was sent a statement of the case that same month. He then filed an April 1996 VA Form 9, perfecting his appeal. He also requested a personal hearing before a member of the Board. In May 1998, the veteran testified on his own behalf before a member of the Board. He reported a long history of bilateral knee pain since service. Currently, he cannot stand for long periods of time due to his knee pain, and he experiences swelling due to fluid collection in each joint. While he does have some range of motion in the knees, he reported pain with most motion. He takes aspirin on a daily basis to manage his pain. While the veteran has pursued outpatient treatment for his bilateral knee problems, he has not been hospitalized due to these disabilities. Overall, he asserted that the disability rating afforded by the VA was insufficient in light of his actual impairment, and a more complete medical evaluation was necessary in order to accurately assess his limitations. At his personal hearing, the veteran also presented the medical report of R.P.D., M.D., who examined the veteran in May 1998. The doctor noted a large bilateral effusion of the knees, with pain on palpation. The veteran had full range of motion but his motion was accompanied by stiffness. Dr. D. reviewed x-rays of the knees taken in 1993, and took additional x-rays for comparison. These films confirmed the presence of bilateral progressive degenerative joint disease of the knees. No joint cartilage was evident in either knee. Minimal subluxation was noted on the left. The final diagnosis was of mild to moderate degenerative arthritis of the bilateral knees, progressing, for which total bilateral knee replacement surgery would probably be necessary in the future. The veteran's claim was initially presented to the Board in May 1999, at which time it was remanded for additional development, including a new VA medical examination. A new VA medical examination, including x-rays, was afforded the veteran in June 1999. He again reported a long history of bilateral knee pain. According to the examination report, although the veteran's knee pain bothered him at the end of his workday, he had not lost any time from work due to his bilateral disability. Upon physical examination, both knees were clearly swollen, but without warmth, discoloration, or tenderness. Range of motion testing revealed 5º extension and 105º flexion on the right, and 5º extension and 95º flexion on the left, both with crepitus. Muscle strength testing demonstrated 5/5 muscle strength on the left, and 5- /5 on the right. The veteran's right knee medial collateral ligament was +1 loose on the right, but the remainder of his right knee ligaments were intact. The ligaments of the left knee were all intact. X-rays taken concurrent with the examination revealed significant joint space narrowing of both knees, and confirmed the presence of osteoarthritis. The final diagnosis was of bilateral osteoarthritis of the knees, severe in degree. In the examiner's opinion, the veteran's significant degree of arthritis would impair his ability to stand, walk, climb stairs, and kneel, and would require total knee replacement in the near future. The examiner did not, however, characterize the veteran's impairment of either knee in terms of additional range of motion loss. In August 1999, the RO considered this additional medical evidence, and continued the prior initial ratings of 10 percent for each knee due to degenerative joint disease. However, an additional separate rating of 10 percent was awarded for lateral instability of the right knee, due to degenerative joint disease. The appeal was then returned to the Board. Analysis The veteran's claims for increased initial ratings for his service-connected bilateral degenerative joint disease of the knees are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). The U. S. Court of Appeals for Veterans Claims (Court) has held that if a veteran claims that a service connected disability has become worse, then the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When the assignment of initial ratings is under consideration, the level of disability in all periods since the effective date of the grant of service connection must be taken into account. Fenderson v. West, 12 Vet. App. 119 (1998). In cases where, after a careful consideration of all evidence, a reasonable doubt arises as to the degree of disability, that reasonable doubt must be resolved in favor of the veteran. 38 C.F.R. § 4.3 (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. 38 C.F.R. § 4.7 (1999). Regarding increased-rating claims for musculoskeletal disabilities, the Court has expounded on the necessary evidence required for a full evaluation of orthopedic disabilities. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that ratings based on limitation of motion do not subsume 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45. It was also held that the provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use. I. Increased initial rating - Degenerative joint disease of the left knee Currently, the veteran's service connected left knee disability is rated 10 percent disabling under Diagnostic Code 5010, for traumatic arthritis. This code in turn utilizes the criteria of Diagnostic Code 5003, for degenerative arthritis, which rates the limitation of motion of the affected joint. When the limitation of motion of the affected joint is noncompensable under the appropriate diagnostic code, a rating of 10 percent is applied for each major joint or group of minor joints involved. Arthritis of two or more major joints, verified by x-ray, with occasional incapacitating exacerbations, warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (1999). As an initial matter, the veteran has asserted that a 20 percent disability rating under Diagnostic Code 5003 is warranted for each knee, because his arthritis involves two or more major joints, with occasional incapacitating exacerbations. While the veteran is service connected for arthritis which involves two or more major joints, with occasional incapacitating exacerbations, he cannot be granted a 20 percent rating for each knee under Diagnostic Code 5003. Such an award would amount to pyramiding, in violation of 38 C.F.R. § 4.14, as each knee would thus be considered twice, once in its own regard, and once again in the context of the opposite knee. 38 C.F.R. § 4.14 (1999). For this reason, an increased initial rating, to 20 percent, under Diagnostic Code 5003, is not warranted for the veteran's degenerative joint disease of the left knee. Instead, the veteran's knees have been evaluated separately, as each displays unique manifestations of the service connected degenerative joint disease. Nevertheless, consideration must be given to other diagnostic codes which may be applicable to the veteran's service connected knee disability. As is noted in Diagnostic Code 5003, any limitation of motion of the affected joint must be considered in rating the veteran's disability. Limitation of motion of the knee will result in a compensable rating of 10 percent where extension is limited to 10º, or flexion is limited to 45º. A 20 percent rating will be awarded for extension limited to 15º, or flexion limited to 30º. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (1999). However, based on the evidence of record, a compensable rating for limitation of motion is not demonstrated. The most severe limitation of motion of the left knee noted in the record is quantified as 5º extension and 95º flexion, both observed in June 1999. Neither of these results warrants a compensable rating in light of the applicable diagnostic codes. While the VA examiner who evaluated the veteran at that time did confirm that the veteran's degenerative joint disease of the left knee would impair his ability to stand, walk, climb stairs, and perform other such activities, he declined to quantify any additional impairment in terms of additional degrees of limitation of motion. The Board itself is forbidden to speculate on the additional limitation of motion, if any, due to pain, weakened movement, excess fatigability, or incoordination on movement, as this question requires medical expertise. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, an increased initial rating due to limitation of motion based on the Court's pronouncements in DeLuca is not warranted at this time. DeLuca, supra. Nevertheless, the VA's General Counsel has determined that because the rating criteria for arthritis do not take into consideration all possible impairment of the affected joint, a separate rating may be awarded under Diagnostic Code 5257 for other impairment of the knee, including such manifestations as lateral instability or recurrent subluxation. 38 U.S.C.A. § 7104(c) (West 1991 & Supp. 1999); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999); VAOPGCPREC. 23-97 (July 1, 1997). Because these manifestations are not considered within the context of Diagnostic Code 5003 et seq., a separate award under Diagnostic Code 5257 is not in violation of 38 C.F.R. § 4.14. In the present case, the December 1995 VA examination report does reflect "buckling" of the veteran's knees, which clearly implies some degree of instability. Likewise, the May 1998 medical examination report of Dr. R.P.D., private physician, indicates subluxation, albeit minimal, of the veteran's left knee. Finally, both the December 1995 and June 1999 VA medical examination reports note effusion of the left knee and crepitus with motion. In light of 38 C.F.R. §§ 4.3 and 4.7, this medical evidence is sufficient to establish slight impairment of the left knee due to subluxation and instability, which warrants a separate 10 percent initial rating under Diagnostic Code 5257. However, an increased initial rating, beyond 10 percent, for lateral instability and subluxation, is not warranted, based on the evidence of record. While the veteran has been examined on several occasions during the pendency of his appeal, he has had minimal, and noncompensable, limitation of motion at all times of record. He is able to stand and self- ambulate, albeit with some pain. According to the May 1998 private medical examination report submitted by the veteran, the subluxation in his left knee is "minimal." The June 1999 VA medical examination report indicates both knees are free of discoloration, warmth, and tenderness. Muscle strength testing was 5/5 on the left, with all ligaments of the left knee intact. The totality of the evidence regarding the left knee is thus against an increased initial rating, in excess of 10 percent, for lateral instability and subluxation of the left knee. A review of the evidence does not suggest the veteran is entitled to a "staged" rating for his service-connected disability as prescribed by the Court in Fenderson v. West, 12 Vet. App. 119 (1999). At no time since the veteran filed his claim for service connection has the service connected disability been more disabling than as currently rated. The veteran's lateral instability and subluxation has, however, presented a degree of impairment equal to a 10 percent rating since the effective date of the claim. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran. The evidence discussed herein does not show that the service connected disability at issue presents such an unusual or exceptional disability picture as to render impractical the application of the regular schedular standards. In particular, the veteran's left knee disability has itself required no periods of hospitalization since his service separation, and is not shown by the evidence to present marked interference with employment in and of itself, as the veteran has stated he has lost no time from work due to his knee disability. Therefore, the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b) is not warranted at this time. The veteran has not otherwise submitted evidence tending to show that his service-connected left knee disability is unusual, or causes marked interference with work other than as contemplated within the schedular provisions discussed herein. In conclusion, the evidence does not support an increased initial rating, in excess of 10 percent, for the veteran's degenerative joint disease of the left knee. However, a separate rating of 10 percent under Diagnostic Code 5257, for lateral instability and recurrent subluxation, is authorized by law and supported by the evidence of record. II. Increased initial rating - Degenerative joint disease of the right knee Currently, the veteran's service connected degenerative joint disease of the right knee is rated 10 percent disabling under Diagnostic Code 5010, for traumatic arthritis. This code in turn utilizes the criteria of Diagnostic Code 5003, for degenerative arthritis, which rates the limitation of motion of the affected joint. When the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent is applied for each major joint or group of minor joints involved. Arthritis of two or more major joints, verified by x-ray, with occasional incapacitating exacerbations, warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (1999). As is noted above, the veteran's disability rating for degenerative joint disease of the right knee cannot be increased to 20 percent for each joint, based on bilateral degenerative joint disease, confirmed by X-ray, of two or more major joints. Such a result would amount to a violation of 38 C.F.R. § 4.14. Nevertheless, the veteran may still be awarded an increased initial rating, in excess of 10 percent, for his service connected degenerative joint disease of the right knee if he has sufficiently severe limitation of motion of the joint. Such an award will be considered below. Limitation of motion of the knee will result in a compensable rating of 10 percent where extension is limited to 10º, or flexion is limited to 45º. A 20 percent rating will be awarded for extension limited to 15º, or flexion limited to 30º. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (1999). In the present case, however, the medical evidence demonstrates, at its most severe, limitation of extension to 5º, reported in December 1995 and again in June 1999, and limitation of flexion to 105º, reported in June 1999. Thus, the schedular criteria for a compensable rating for limitation of motion of the right knee are not met. While the VA examiner who evaluated the veteran in June 1999 did confirm that the veteran's degenerative joint disease of the right knee would impair his ability to stand, walk, climb stairs, and perform other such activities, he declined to quantify any additional impairment in terms of additional degrees of limitation of motion. The Board itself is forbidden to speculate on the additional limitation of motion, if any, due to pain, weakened movement, excess fatigability, or incoordination on movement, as this question requires medical expertise. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, an increased initial rating due to limitation of motion based on the Court's pronouncements in DeLuca is not warranted at this time. DeLuca, supra. A review of the evidence does not suggest the veteran is entitled to a "staged" rating for his service-connected disability as prescribed by the Court in Fenderson v. West, 12 Vet. App. 119 (1999). At no time since the veteran filed his claim for service connection has the service connected disability been more disabling than as currently rated. The veteran's degenerative joint disease of the right knee has, however, presented a degree of impairment equal to a 10 percent rating since the effective date of the claim. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran. The evidence discussed herein does not show that the service connected disability at issue presents such an unusual or exceptional disability picture as to render impractical the application of the regular schedular standards. In particular, the veteran's right knee disability has itself required no periods of hospitalization since his service separation, and is not shown by the evidence to present marked interference with employment in and of itself, as the veteran has stated he has lost no time from work due to his knee disability. Therefore, the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b) is not warranted at this time. The veteran has not otherwise submitted evidence tending to show that his service-connected right knee disability is unusual, or causes marked interference with work other than as contemplated within the schedular provisions discussed herein. In conclusion, the preponderance of the evidence is against an increased initial rating, in excess of 10 percent, for the veteran's degenerative joint disease of the right knee. III. Increased initial rating - Lateral instability of the right knee As has been noted above, the veteran has been awarded an additional separate grant of service connection under Diagnostic Code 5257 for lateral instability of the right knee, with an initial 10 percent disability rating. See 38 U.S.C.A. § 7104(c) (West 1991 & Supp. 1999); VAOPGCPREC. 23-97 (July 1, 1997). Under this code, a 10 percent rating is warranted for slight impairment of the knee due to lateral instability or recurrent subluxation, and a 20 percent rating is warranted for moderate impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999). After consideration of all evidence of record, moderate impairment of the right knee has been demonstrated, and an increased initial rating to 20 percent under Diagnostic Code 5257 is warranted. When the veteran was first examined by the VA in December 1995, he reported occasional swelling and buckling of the right knee joint. Range of motion testing revealed crepitus in the right knee with motion. Effusion of the right knee joint has also been noted on several occasions. When he was examined for the second time in June 1999, some decrease in muscle strength was noted in the right knee, and his right medial collateral ligament was +1 loose. The examiner also concurred with a May 1998 private medical examination report finding that the veteran would need total knee replacement surgery in the near future. Finally, the veteran has presented credible sworn testimony that he experiences pain and instability of the right knee, especially after extended use. He also cannot run due to his right knee disability. In light of 38 C.F.R. §§ 4.3 and 4.7, the evidence is sufficient to establish moderate impairment of the right knee due to subluxation and instability, which warrants a 20 percent initial rating under Diagnostic Code 5257. Furthermore, the veteran has presented a degree of impairment due to instability and/or subluxation of the right knee equal to a 20 percent rating since the effective date of the claim. See Fenderson, supra. However, the preponderance of the evidence is against an increased initial rating of 30 percent for severe impairment of the right knee. The medical evidence confirms full, or near full, range of motion of the right knee since his separation from service. The June 1999 VA examination report confirmed +1 looseness of the medial collateral ligament, but also described the remainder of the right knee ligaments as intact. Muscle strength of the right knee, at 5-/5, according to the June 1999 examination report, is not severely reduced. Despite the veteran's right knee pain, he is able to both stand and walk unassisted, and without use of a support device. Overall, the totality of the evidence is against a finding of severe impairment of the right knee due to such manifestations as instability and/or subluxation. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran. The evidence discussed herein does not show that the service connected disability at issue presents such an unusual or exceptional disability picture as to render impractical the application of the regular schedular standards. In particular, the veteran's right knee instability and subluxation have themselves required no periods of hospitalization since his service separation, and are not shown by the evidence to present marked interference with employment in and of itself, as the veteran has stated he has lost no time from work due to his right knee disability. Therefore, the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b) is not warranted at this time. The veteran has not otherwise submitted evidence tending to show that his service-connected right knee disability is unusual, or causes marked interference with work other than as contemplated within the schedular provisions discussed herein. In conclusion, an increased initial rating to 20 percent, and no higher, is warranted under Diagnostic Code 5257 for moderate lateral instability and recurrent subluxation of the right knee due to degenerative joint disease. ORDER 1. The veteran's claim for an increased initial rating, in excess of 10 percent, for degenerative joint disease of the left knee, is denied. 2. A separate increased initial rating of 10 percent is awarded under Diagnostic Code 5257, for lateral instability and recurrent subluxation of the left knee. 3. The veteran's claim for an increased initial rating, in excess of 10 percent, for degenerative joint disease of the right knee, is denied. 4. An increased initial rating of 20 percent is warranted under Diagnostic Code 5257, for lateral instability and recurrent subluxation of the right knee. G. H. SHUFELT Member, Board of Veterans' Appeals