Citation Nr: 0007771 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 96-26 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an evaluation in excess of 10 percent for impairment of the right knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. K. Enferadi, Associate Counsel INTRODUCTION The veteran had active service from August 1986 to August 1994. This matter arises before the Board of Veterans' Appeals (Board) from a March 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for removal of right semilunar cartilage and assigned a zero percent evaluation. In the interim, the RO increased the evaluation of the veteran's right knee impairment from zero percent to 10 percent in a rating decision dated in August 1996, effective from March 8, 1996. In August 1997, the Board remanded this matter for further development. The Board is satisfied that all remand directives have been met. FINDING OF FACT The veteran's right knee impairment is productive of pain and discomfort on movement of the patella against the underlying femoral condyle. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 10 percent for right knee impairment have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71, Diagnostic Code 5257 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background A review of the record reveals that the RO granted service connection for residuals of right meniscectomy in a rating decision dated in March 1996 and assigned a zero percent evaluation effective from March 8, 1996. The veteran's service medical records were considered at that time that showed treatment related to several surgeries that had been performed on the veteran's right knee. Post-service records include VA joint examination dated in June 1996 that includes a recitation of the veteran's past medical history with respect to her right knee. The veteran reported consistent symptoms of snapping and pain, and some swelling. The veteran also reported that she wears a knee brace and cannot exert herself more than walking because of significant impairment. On examination, the examiner noted that the veteran could not get the knee straight and even slight forced extension caused pain. There was no evidence of intra-articular swelling at that time. There was full range of motion and no instability. Moderate subpatellar crepitus was noted on active flexion and extension. The examiner further noted that there was some deviation of the patella to the lateral aspect of the right knee. The Q angle was not increased and measured approximately 15 degrees bilaterally. Some tenderness was noted at the distal pole of the patella and around the patellar tendon, more severe at the patellar attachment. The vastus medialist obliquus was slightly less in size on the right; however, there was no significant difference between the left and right as to the thigh circumference. The examiner concluded that there was some patellofemoral arthritis, traumatic in nature, and probably some fissuring of the articular surface, with some perceived accompanying patellar tendinitis. X-ray studies conducted in June 1996 disclosed a small enostosis in the lateral aspect of the proximal tibial metaphysis. Rating action dated in August 1996 reveals that the RO increased the evaluation of the veteran's right knee impairment to a 10 percent rating. Pursuant to the Board remand of this issue in August 1997, the veteran underwent a December 1998 VA examination, at which time the examiner reviewed the veteran's clinical history of right knee impairment. The veteran complained of increased pain in the right knee with swelling off and on. Further, the veteran stated that about once a month, she experiences popping that appears to reposition something in her knee. Cold and damp weather increases her symptoms. The veteran has been wearing a brace for several years, which appeared to help. Although the veteran reported no buckling of the right knee, she reported that she does have a locking of the knee in a flexed position that requires steady manipulation to straighten it out. The examiner noted that the veteran took two tablets of Tylenol every six to eight hours. On examination, the examiner noted that the veteran's gait on level ground showed a mild antalgia. The veteran was able to get up on the tip of her toes and walk without problems; however, walking on her heels caused discomfort in the patellofemoral region. She was able to do a partial deep knee bend, but had discomfort on attempting to get up. Further examination revealed that the Q angle on the right was definitely increased and measured about 18 to 20 degrees as compared to 10 degrees on the left. Leg lengths and thigh girths were equal bilaterally. Flexion on the right was from zero to 130 degrees as compared to the left at zero to 137 degrees. The motion was smooth with no discomfort, no ligament laxity and Lachman's test and anterior drawer tests were negative. Also, the examiner observed that there was no tenderness medially or laterally. The veteran had some discomfort with lateral rotational stress test in the right knee. Further examination revealed a patellar alteration with some lateral tilting of the patella. There was no specific crepitus, but there was a positive inhibition test and positive apprehension test on the right side. Also, there was pain on moving the patella against the underlying femoral condyle. Attempts at palpating the undersurface of the patella produced some discomfort. X-ray studies of the right knee indicated that the medial and the lateral joint compartments were well preserved with a 4.5 millimeter of joint space in the medial compartment and a six millimeter of joint space in the lateral joint compartment. Also, there was some subchondral sclerosis in the patella indicative of early moderate degenerative changes. The examiner noted a diagnosis of patellofemoral maltracking syndrome and degenerative disease. Analysis The issue before the Board is whether the veteran is entitled to an evaluation in excess of 10 percent for her right knee impairment. A claim for an increased evaluation for a service-connected disability is well grounded if the veteran indicates that she has increased disability. 38 U.S.C.A. § 5107(a) (West 1991); see also Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). At the outset, the Board notes that a claim placed in appellate status by disagreement with the initial rating award and not yet ultimately resolved is an original claim as opposed to a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In light of the veteran's notice of disagreement (NOD) dated in April 1996 filed in response to the March 1996 rating action in which the RO originally granted service connection and assigned a zero percent evaluation, this claim is considered an original claim. As such, under Fenderson, the record as a whole is reviewed prior to making a final determination. Id. Further, in such cases, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id., slip. op. at 9. Disability evaluations are determined, as far as practicable, upon the average impairment of earning capacity attributable to specific injuries or combination of injuries coincident with military service. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Each disability must be viewed in relation to its history with an emphasis placed on the limitation of activity imposed by that disability. 38 C.F.R. § 4.1. The degrees of disability contemplated in the evaluative rating process are considered adequate to compensate for loss of working time due to exacerbation or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. This veteran's right knee impairment is evaluated pursuant to the rating criteria found under Diagnostic Codes 5259-5257. Diagnostic Code 5259 relates to the removal of semilunar cartilage and provides for a 10 percent evaluation. 38 C.F.R. § 4.71, Diagnostic Code 5259 (1999). At the time of the original grant of service connection, the RO rated the veteran's right knee disability under Diagnostic Code 5259 based on the veteran's inservice surgery. Id. Under Diagnostic Code 5257 that relates to impairment of the knee with recurrent subluxation or lateral instability, a 10 percent evaluation is warranted for slight impairment, a 20 percent rating is merited for moderate impairment, and the maximum of 30 percent is assigned for severe impairment. 38 C.F.R. § 4.71(a), Diagnostic Code 5257 (1999). In this veteran's case, her current 10 percent evaluation more nearly approximates impairment associated with her right knee. Overall, the evidence as a whole does not substantiate more than slight impairment. Specifically, as noted above during the December 1998 VA examination, there was no tenderness, motion was smooth without ligament laxity, pertinent tests were negative, the veteran was able to rise onto her tiptoes and walk without trouble, and the complaints were confined primarily to discomfort with some pain on motion of the patella and some locking of the knee in a flexed position. Thus, in light of this evidence, pathology associated with the veteran's right knee disability is not productive of more than slight impairment. Therefore, the current 10 percent rating is appropriate. Furthermore, results from the June 1996 VA examination revealed no instability with only some deviation of the patella to the lateral part of the right knee. Some tenderness was evident and the examiner reported patellofemoral arthritis. Nonetheless, such symptomatology is not indicative of more than slight impairment, and as such, a 10 percent evaluation more nearly approximates the veteran's right knee disability. Id. However, the Board acknowledges that the assignment of a particular diagnostic code depends entirely on the facts of a specific case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. A change in the diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992); see also Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In this light, the Board points out that under other potentially relevant diagnostic codes, the veteran's right knee disability does not merit an evaluation in excess of the current 10 percent rating. Specifically, Diagnostic Code 5256 rates ankylosis of the knee and requires ankylosis in flexion between 10 and 20 degrees for a 40 percent rating, and in flexion between 20 and 45 degrees for a 50 percent rating. 38 C.F.R. § 4.71a-20, Diagnostic Code 5256 (1999). Nonetheless, ankylosis is neither demonstrated nor contended in this case. Further, as to Diagnostic Code 5260 for limitation of flexion, upon showing flexion limited to 45 degrees, the veteran merits a 10 percent evaluation. With flexion limited to 30 degrees, a 20 percent evaluation is warranted, and a maximum of 30 percent is merited for flexion limited to 15 degrees. 38 C.F.R. § 4.71(a), Diagnostic Code 5260 (1999). Additionally, Under Diagnostic Code 5261, with extension limited to 10 degrees, a 10 percent evaluation is assigned. Where there is evidence of extension limited to 15 degrees, a 20 percent evaluation is warranted. Further, with extension limited to 20 degrees, a rating of 30 percent is merited. 38 C.F.R. § 4.71(a), Diagnostic Code 5261 (1999). However, according to the results from the December 1998 examination, the veteran's limitation of motion amounted to flexion on the right from zero to 130 degrees as compared to the left at zero to 137 degrees. Such limitations are minimal in nature and do not equate with what is required under the rating criteria for a 20 percent evaluation. See supra 38 C.F.R. § 4.71, Diagnostic Codes 5260, 5261. Essentially, flexion was not limited to 30 degrees and extension was not limited to 15 degrees; thus, the veteran has not presented clinical evidence of limitation of motion so as to warrant the next higher evaluation under these diagnostic codes. Id. As relates to impairment of the tibia or fibula, the veteran has not provided evidence of nonunion of the right knee or loose motion that requires the use of a brace. 38 C.F.R. § 4.71a-20, Diagnostic Code 5262 (1999). Although the veteran has used a brace over a period of years, there is no indication that such use is due to loose motion. For example, results from the December 1998 VA examination disclosed that motion was smooth without discomfort. There were no clinical data that tended to suggest loosening, nonunion, or related complications. Thus, in this veteran's case, Diagnostic Code 5262 does not apply. Id. In light of the above, the Board emphasizes that the assignment of a rating is a factual determination, and based on the facts as presented earlier herein, the veteran's right knee disability does not warrant the next higher evaluation of 20 percent under Diagnostic Code 5257. See Zink v. Brown, 10 Vet. App. 258, 259 (1997) (per curiam affirmed). Furthermore, the Board acknowledges that in cases of functional loss and impairment, under 38 C.F.R. §§ 4.10, 4.40 (1999), evaluations must contemplate the lack of usefulness of the specific limb or joint in question. Id. In this vein, the Board has reviewed the entire clinical evidence of record and concludes that the veteran's symptomatology referable to his right knee disability does not indicate a degree of impairment beyond that which is considered within the 10 percent evaluation under Diagnostic Code 5257. 38 C.F.R. § 4.71, Diagnostic Code 5257. Specifically, although the evidence substantiates some discomfort, overall, there is no instability, motion is smooth, there are no complaints of buckling, and in general, the knee appears fairly stable with a normal gait. The Board acknowledges that functional loss due to the affected joints is not subsumed into the diagnostic codes under which a veteran may be rated. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In this case, the Board has considered any weakness of pain and limitation of motion of the right extremity, and as such, has determined that, while the veteran complains of occasional discomfort and pain, the record does not suggest that the pain results in such degrees of fatigability, incoordination, lack of strength or endurance so as to warrant consideration over and above the current 10 percent rating under Diagnostic Code 5257. See 38 C.F.R. § 4.45 (1999). Thus, in view of the aforementioned, and in determining functional impairment, the Board has carefully considered the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45. In this case, Diagnostic Code 5257 adequately addresses the criteria of pain, limitation of motion, and weakness in the affected extremity in rating right knee impairment. As stated earlier, while there is objective evidence of pain, the record does not suggest that the pain results in functional impairment beyond what is contemplated by the 10 percent rating under Diagnostic Code 5257. 38 C.F.R. § 4.71(a), Diagnostic Code 5257. It should also be noted that the VA General Counsel issued a precedent opinion (VAOPGCPREC 23-97) holding that a claimant who has arthritis and instability of the knee may be rated separately under Codes 5003 and 5257, if the claimant has additional disability. In determining whether additional disability exists, for purposes of a separate rating, the veteran must meet, at minimum, the criteria for a zero- percent rating for limitation of motion under Codes 5260 or 5261. The evidence does not show that the veteran has flexion limited to 6 degrees or extension limited to 5 degrees. Accordingly, a separate rating is not appropriate. The Board does give credence to the veteran's assertions that she experiences pain and instability in the right knee; however, there is no data of record to substantiate severity such that it results in impairment that rises to the level of an evaluation in excess of 10 percent. Moreover, factors such as weakness, fatigability, or incoordination are not indicated on the record to an extent that would support the assignment of a rating higher than 10 percent, as stated herein. Id. The Board has considered the veteran's record in its entirety and all potential applicable law and regulations pertinent to this veteran's allegations and raised issues. Schafrath v. Derwinski, 1 Vet. App. 589. In light of the discussion above, and pursuant to VA law that requires that all doubt as to any matter be resolved in favor of the veteran, the Board concludes that an evaluation in excess of 10 percent is not warranted in this veteran's case. ORDER Entitlement to an evaluation in excess of 10 percent for right knee impairment is denied. V. L. Jordan Member, Board of Veterans' Appeals