Citation Nr: 0005282 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 93-16 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Evaluation of patellofemoral disease of the right knee, status post right lateral meniscus repair, currently evaluated as 10 percent disabling. 2. Evaluation of patellofemoral disease of the left knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service ATTORNEY FOR THE BOARD J. M. Ivey, Associate Counsel INTRODUCTION The appellant served on active duty from March 1988 to July 1991. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 1991 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). In September 1997 the Board remanded the case for the further development. The requested development has been accomplished. The case is now before the Board for further appellate review. Review of the record does not reveal that the RO expressly consider referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked inference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the RO did not expressly consider 38 C.F.R. § 3.321(b)(1), the Board has reviewed the record with these mandates in mind and finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). FINDINGS OF FACT 1. The patellofemoral disease of the right knee, status post right lateral meniscus repair is manifested primarily by pain on palpation of the medial and lateral collateral ligament area. 2. The patellofemoral disease of the left knee is manifested primarily by mild crepitance with flexion. CONCLUSIONS OF LAW 1. The criteria for the assignment of a higher disability evaluation for patellofemoral disease of the right knee, status post right lateral meniscus repair, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.7, 4.40, 4.45, Diagnostic Codes 5299-5010 (1999). 2. The criteria for the assignment of a higher disability evaluation for patellofemoral disease of the left knee are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.7, 4.40, 4.45, Diagnostic Codes 5299- 5010 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant claims that his service-connected patellofemoral disease of the right knee, status post right lateral meniscus repair and patellofemoral disease of the left knee are worse than the current evaluation contemplates. The Board finds that the appellant has submitted evidence, which is sufficient to justify a belief that his claims for higher evaluations are well grounded. 38 U.S.C.A. § 5107(a) (West 1991). That is, where the claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of an evaluation for the disability, the claim continues to be well grounded as long as the rating schedule provides for a higher evaluation and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 225 (1995). The Board has continued the issues as entitlement to an increased evaluation since service connection has been granted for the disabilities. The appellant is not prejudiced by the naming of the issues. The Board has not dismissed any issues and the law and regulations governing the evaluation of the disabilities are the same regardless of how the issues have been phrased. The distinction between disagreement with the original evaluation awarded and a claim for an increased evaluation is important in terms of VA adjudicative actions. However, the U.S. Court of Appeals for Veterans Claims did not provide a substitute name for the issues. In reaching the determination below, the Board has considered whether staged evaluations should be assigned. The Board concludes that the disabilities addressed have not significantly changed and staged ratings are not appropriate in this case. See Fenderson v. West, 12 Vet. App. 119, 125- 26 (1999). All relevant facts have been properly developed. VA has completed its duty to assist the appellant in the development of his increased rating claims. See 38 U.S.C.A. § 5107(a). The appellant has not reported that any other pertinent evidence might be available. See Epps v. Brown, 9 Vet. App. 341, 344 (1996). Service-connected disabilities are rated in accordance with a schedule of ratings that are 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 (1999). When a question arises as to which of two evaluations shall be assigned, 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). VA also has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). It is permissible to evaluate the appellant's service- connected disabilities under provisions of the schedule which pertain to a closely-related disease or injury which is analogous in terms of the function affected, anatomical localization and symptomatology. 38 C.F.R. § 4.20 (1999). The RO evaluated the appellant's disability analogous to arthritis under Diagnostic Codes 5003-5010. See 38 C.F.R. Part 4, Diagnostic Codes 5003-5010 (1999). Under Diagnostic Codes 5003-5010, which addresses arthritis, it notes that arthritis established by x-ray findings will be rated on the basis of limitation of motion. See 38 C.F.R. Part 4, Diagnostic Codes 5003-5010 (1999). 38 C.F.R. § 4.10 (1999) states that, in cases of functional impairment, evaluations are to be based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon a person's ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. §§ 4.40, 4.45 (1999). See also DeLuca v. Brown, 8 Vet. App. 202 (1995). These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (1999). One exception to this general rule, however, is the anti-pyramiding provision of 38 C.F.R. § 4.14 (1999), which states that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. In Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that the disability in that case -- scarring -- warranted 10 percent evaluations under three separate diagnostic codes, none of which provided that a veteran may not be rated separately for the described conditions. Therefore, the conditions were to be rated separately under 38 C.F.R. § 4.25 unless they constituted the "same disability" or the "same manifestation" under 38 C.F.R. § 4.14. Esteban, at 261. The critical element cited was "that none of the symptomatology for any one of those three conditions [was] duplicative of or overlapping with the symptomatology of the other two conditions." Id., at 262. The normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. Part 4, Plate II (1999). In every instance where the schedule does not provide a zero percent evaluation for a particular diagnostic code, a zero percent evaluation shall be assigned when the requirements of a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). Service medical records show that the appellant was seen for complaints of right and left knee pain. In February 1991 a diagnostic arthroscopy and repair of a flap tear of the posterolateral meniscus was performed on his right knee. In April 1991 the Department of the Navy Physical Evaluation Board determined that the appellant was unfit for duty. The appellant's diagnoses were bilateral patellofemoral disease symptomatic and right posterior horn lateral meniscal tear, status post surgical debridement. At the October 1991 VA examination the appellant reported that he fell on his right knee while in service and that his left knee had recently become painful perhaps. Upon examination there were no apparent gait abnormalities. There was minimal effusion in the right knee and no effusion in the left knee. There was no deformity save for the arthroscopy scars over the right knee. Both knees had negative anterior drawers and negative posterior drawer's examinations. The Lachmann test was bilaterally negative, as was the McMurray test. There was some mild joint line tenderness on the right knee medially and anteriorally. There was no tenderness of the medial collateral/lateral collateral and no verus or valgus laxity. There was no laxity in either at 0 degrees of full extension or at 30 degrees of flexion. There was a negative pivot shift in both knees. The patellar stress test did not produce any apprehension. There was no pain with patellar grind. There was a mild amount of atrophy of the quadriceps from the right thigh compared to the left. The impression was probably a recurrent medial meniscal tear with no evidence of instability in his right knee and left knee mild pain with no evidence of instability and no evidence of meniscal lesion. The October 1991 VA X-rays showed no evidence of fracture or subluxation in either knee. There was no evidence of joint space narrowing or osteophytes to suggest osteoarthritis changes. The impression was a normal radiograph of both knees. In March 1992 the appellant was seen for complaints of bilateral knee pain. He reported knee pain with a burning sensation and also that his knees gave out on him. Upon examination right knee crepitance with passive range of motion was noted. The diagnosis was right knee pain. The July 1994 VA examination of the appellant's right knee revealed a positive patella compression and positive patellar apprehension with negative patellar tilt. There was no effusion and his range of motion was from 0 degrees to 135 degrees. The appellant did not have varus or valgus instability. The Lachmann's test was negative as was the anterior and posterior drawer tests. He had negative medial and lateral joint line tenderness. His pivot shift was also negative. The appellant was neurovascularly intact to his right lower extremity. The impression was status post right medial meniscectomy with some patellar chondromalacia. At the March 1997 VA examination the appellant's gait was normal. He was able to do deep knee bends without assistance and without obvious pain. Crepitance was noted with extremes of flexion in both knees. Examination of the right knee showed range of motion from 0 degrees to 135 degrees. There was mild crepitance noted with extremes of flexion. There was neither obvious effusion nor warmth. The patella appeared to track normally. There was pain with compression of the patella with quadriceps activation. The knee was stable to varus and valgus examination. The appellant had a negative Lachman's, anterior drawer, and posterior drawer and McMurray's examinations. He had scars from his arthroscopy examination, which were well healed without adhesion, inflammation of tenderness. Examination of the left knee showed that the appellant's range of motion was from 0 degrees to 135 degrees. He had mild crepitance with flexion. There was no effusion. The Lachman's, anterior drawer, posterior drawer and McMurray's examinations were negative. There was pain with compression of the patella and quadriceps activation. The patella otherwise appeared to tract normally. The assessment was patella femoral pain bilaterally status post meniscal tear by report, in the right knee. The March 1997 VA X-rays showed no evidence of degenerative process with the joint spaces well maintained, particularly concerning the patella femoral joint. The assessment was history of patella femoral disease without radiographic evidence of degenerative process of patella femoral joint. The VA outpatient treatment records show that the appellant was seen for complaints of right knee pain between January 1998 and April 1998. A January 1998 Magnetic Resonance Image (MRI) of the appellant's right knee found that the marrow signal around the knee appeared normal. There was no large joint effusion seen. The collateral ligaments and cruciate ligaments were all of normal signal intensity and morphologic appearance. The patellofemoral-articulating surface appeared normal. The medial meniscus appeared normal. There was no evidence of tear in this component. The lateral meniscus however, showed a linear wide band of high signal within the posterior horn extending into the inferior surface likely representing a large tear. This band of increased signal extended anteriorly into the posterior and superior middle third of the meniscus. There were areas of increased signal seen in the anterior horn which did not convincingly extend all the way to the articulating surface and could represent Grade II signal changes within the anterior horn, however, a tear at this site could not be entirely excluded. The impressions were meniscal tear of the posterior horn of the lateral meniscus which extends into the middle third as described above; anterior horn increased signal as described above either representing a Grade II internal signal changes or possibly and additional tear at this site; normal appearing medial meniscus, collateral ligaments, and cruciate ligaments. There was no evidence of bone contusions. A right knee arthroscopy was performed in February 1998. The pre-operative diagnosis and the post-operative diagnoses were right lateral meniscal tear. The April 1998 VA X-rays revealed that there was a varus deformity of the right knee. Cartilaginous joint spaces appeared preserved. Small osteophytes projected from the lateral joint space. The impression was small lateral osteophytes with varus abnormalities. The VA outpatient treatment reports dated June 1998 to July 1998 show follow-up treatment through July 1998 for the appellant's right knee status postoperative. In June 1998 Lachman's test was negative and the posterior cruciate ligament was intact. There was mild quadriceps atrophy. In July 1998 the assessment was right knee meniscus tear. At the July 1998 VA examination the appellant's range of motion of his knees in flexion and extension were from 0 to 140 degrees bilaterally. Sensation was intact to pin prick and light touch over the lower extremity dermatomes. Muscle strength was normal in the quadriceps and hamstrings bilaterally. There was no mediolateral or anteroposterior instability of the knees. The patella apprehension test was positive bilaterally; the right was greater than the left. There was pain on palpation of the medial and lateral collateral ligament area on the right. The Apley grinding test was negative bilaterally. The appellant's gait was mildly antalgic and the appellant dragged his right leg, which according to him he did so because his physical therapist told him to take pressure off the leg because of pain. The appellant also used an elastic knee sleeve on his right knee during ambulation with a patella cut-out. There were no other focal neuromuscular deficits. The assessment was clinically the appellant had right knee pain secondary to knee surgery with no objective focal neuromuscular deficits on this examination other than pain on palpation of the patella and medial and lateral areas of the knees. The examiner stated that the abnormal gait which was according the appellant because of pain. The appellant's patellofemoral disease of the right knee, status post right lateral meniscus repair and patellofemoral disease of the left knee cannot be rated under DC 5256, as they do not exhibit ankylosis. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). The RO also considered Diagnostic Code 5257, which refers to instability. Under this diagnostic code, slight recurrent subluxation or lateral instability is reflected by a 10 percent disability rating and moderate recurrent subluxation or lateral instability is indicative of a 20 percent disability evaluation. A 30 percent rating is for severe impairment. However, the appellant does not have instability or subluxation of either his right or left knee. The October 1991 VA examination report shows that there was no laxity of the cruciate or collateral ligaments. In July 1998 there was no mediolateral or anteroposterior instability of the knees. Therefore, a separate 10 percent rating is not warranted under DC 5257. Dislocation of the semilunar cartilage of either knee with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent disability evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (1999). In October 1991 there was perhaps minimal effusion in the right knee and no effusion in the left knee. The July 1994 VA examination revealed that there was no effusion in the right knee. In March 1997 there was no effusion in either knee. An evaluation under Diagnostic Code 5258 is not warranted. Although an effusion may have been present in October 1991, the other records establish that if the effusion existed, it was not frequent. Similarly, there was no indication of locking. Although he has complaints of pain, no examiner has established that the pain is due to dislocated cartilage. The appellant is already in receipt of the maximum evaluation under Diagnostic Code 5259, which refers to removal of semilunar cartilage of the knee. The regulation provides a 10 percent rating for symptomatic removal of the semilunar cartilage. For limitation of motion of the leg, Diagnostic Code 5260 provides a 10 percent rating where flexion is limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent to 15 degrees. Diagnostic Code 5261 provides a 10 percent rating where extension of the leg is limited to 10 degrees, 20 percent where limited to 15 degrees, 30 percent when limited to 20 degrees and 40 percent when limited to 30 degrees. However, the limitations of flexion and extension reported at the July 1998 VA examination support only a noncompensable rating under DC 5260 and DC 5261. The VA examination report shows that both knees extension was 0 degrees and flexion was 140 degrees. The disabilities cannot be rated under DC 5262, as they do not involve impairment of the tibia or fibula, or DC 5263, as they do not involve genu recurvatum. The Board has considered DeLuca v. Brown, 8 Vet. App. 202 (1995), which addresses 38 C.F.R. §§ 4.10, 4.14, 4.40, 4.45, in reaching its conclusion in this case. The functional loss due to pain, however, is adequately covered by the 10 percent. See 38 C.F.R. § 4.59 (1999). The March 1997 VA examination report showed that he could do deep knee bends without assistance and without obvious pain. Further, there was no evidence of soft tissue swelling or increased heat around the knees. Although there was mild atrophy on the right in October 1991, there was none on the left. Although there was pain on the left, it was described as mild. In regard to functional use, the examiner noted that there were no apparent gait abnormalities. The range of motion has never been described as significantly limited due to any factor, including pain, weakness, excess fatigability, incoordination or more motion than normal. In fact, the 1997 examination established that he continued with a normal gait and there was no obvious incoordination, weakness or fatigability. It was clearly established that he could do a deep knee bend without obvious pain. This again establishes good functional use while weight bearing. Although the 1998 examiner noted that there was right knee pain, the actual range of motion was from 0 to 140 degrees, strength was 5/5, and the gait was described as only mildly antalgic. The examiner never established that the range of motion was otherwise limited beyond that reported by him. In sum, the current evaluation contemplates the presence of periarticular pathology productive of painful motion, or the functional equivalent of limitation of flexion to 30 degrees or the functional equivalent of limitation of extension to 10 degrees. Neither the objective findings nor the subjective complaints have established greater functional limitation than that contemplated by the current evaluations. Any limitation of motion due to pain is not of such a degree as to warrant as separate compensable rating under Diagnostic Codes 5260 or 5261, as discussed above. As the appellant underwent surgery during service the Board has also considered whether the surgical scars warrant separate compensable evaluations. Residual superficial scarring resulting from the injury must be poorly nourished with repeated ulceration, or tender and painful on objective demonstration for a 10 percent rating. 38 C.F.R. Part 4, § 4.117, Diagnostic Codes 7803, 7804 (1999). Scars, other than disfiguring facial scars, residuals of second or third degree burns, or scars that are poorly nourished, etc., are rated on limitation of function of the part affected. 38 C.F.R. § 4.118, Part 4, Diagnostic Code 7805 (1999). The record as a whole does not show that the post surgical scars are productive of any significant functional impairment, nor otherwise disabling. The claims file does not indicate that the appellant has ever complained of scarring residuals. As the scars have not been shown to result in functional limitation of the knees, a separate rating is not warranted. See Esteban, supra. The appellant is competent to report pain in his knees. These complaints of pain do not exceed the criteria for the current 10 percent rating. He has not identified instability or any functional limitation, which would warrant a higher rating under any applicable rating criteria. Further, the objective findings of a trained medical professional are substantially more probative in determining whether any of the applicable criteria for a higher rating have been met. In this case, the October 1991 VA X-rays showed no evidence of fracture or subluxation in either knee. The April 1998 VA X-ray showed that there was a varus deformity of the right knee. While the July 1998 direct examination revealed that there was pain on palpation of the medial and lateral collateral ligament area on the right. Neither pain nor any other factor limited knee motion and there was no instability. These findings do not approximate any applicable criteria for a higher rating. 38 C.F.R. § 4.7 (1999). Consequently, the preponderance of evidence is against the claim for a higher rating. 38 U.S.C.A. § 5107(b) (West 1991). ORDER The assignment of a higher disability evaluation for patellofemoral disease of the right knee, status post right lateral meniscus repair is denied. The assignment of a higher disability evaluation for disease of the left knee is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals