Citation Nr: 0007917 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 97-18 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an increased evaluation for residuals of excision of an ossified nodule of the lateral patella of the right knee, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD G. R. Gleeson, Associate Counsel INTRODUCTION The veteran had active military duty from May 1990 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in Wichita, Kansas (RO), denying the veteran's claim for an increased evaluation for his right knee disability, which was rated as 10 percent disabling. In a December 1997 remand opinion, the Board required further development of the claim. Subsequently, the RO increased evaluation in October 1998 of the right knee disability to 30 percent. In his May 1997 substantive appeal, the veteran stated that he believes he is entitled to an evaluation of 20 percent. However, as he has not indicated full satisfaction with the current level of 30 percent granted in October 1998, the appeal proceeds. REMAND The veteran contends that the evaluation assigned for his right knee disability should be increased to reflect more accurately the severity of his symptomatology. As a preliminary matter, it is noted that the veteran's claim alleges an increase in severity of the service-connected disability, and is therefore a well-grounded claim for an increased evaluation. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board notes, that as the claim is well grounded, the VA has a duty to assist the veteran. 38 U.S.C.A. § 5107(a). The veteran was granted service connection for a right knee disability in November 1991, with an evaluation of 10 percent. The 10 percent evaluation was continued in an October 1992 decision. A new claim for increased evaluation was filed in September 1996. The claim was denied by the RO in January 1997. However, a December 1997 Board remand required additional development, including the retrieval of private medical records and a new VA examination. Records were retrieved from Susan Giovanni, D.O and Bruce R. Buhr, M.D. These reveal that after initial evaluation by Dr. Giovanni, the veteran was referred to Dr. Buhr, who evaluated the veteran in May 1997. Dr. Buhr recommended that an arthroscopy be performed, and this was done, along with debridement and lateral release, in May 1997. Diagnosis was chondromalacia and synovitis. At follow-up visits, the veteran's right knee was still symptomatic, including pain, swelling, effusion and some limitation of motion. In August 1998, fluid was aspirated from the knee. The veteran had a VA examination in May 1998. Examination revealed an antalgic gait. Findings include that there was moderate effusion in the knee joint and a very lax patella, as well as grinding and crepitance on flexion and extension of the kneecap. However, it was noted that there was no medial lateral instability and the knee was stable. There was significant muscle atrophy, muscle weakness, and excessive fatigability against use. He did not have incoordination, but had painful movement on loading motion. He had pain with stairs, kicking, squatting and carrying heavy loads. Range of motion was full flexion and extension lacking ten degrees on the right. He had moderate pain on full flexion. X-rays did not reveal any decrease in joint space or significant arthritis. Alignment was good. In October 1998, the RO increased the evaluation of the veteran's right knee disability to 30 percent. The knee is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, which provides for evaluating an impairment of the knee involving recurrent subluxation or lateral instability. A 10 percent evaluation is assigned in mild cases, 20 percent in moderate cases, and 30 percent in severe cases. The Board notes that there are numerous diagnostic codes that apply to the evaluation of knee disabilities, and finds that additional medical evidence is necessary to determine the appropriate diagnostic code or codes in this case. The Board calls attention to Esteban v. Brown, 6 Vet. App. 259 (1994), which provides that separate ratings for the same disability under separate diagnostic codes are permissible where the symptomatology described in the criteria in one diagnostic code are distinct from those of the other diagnostic code. In such case, pyramiding does not occur. 38 C.F.R. § 4.14. The Board also notes that this principle was addressed in VAOPGCPREC 23-97 (1997), where a knee dysfunction involves both instability and arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. In this case, there is no evidence of arthritis, however there is evidence of limitation of extension, which is evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5261. As noted above, the veteran has been rated under criteria that consider subluxation and/or lateral instability, but do not consider limitation of motion. Thus, under Esteban, if the veteran has symptoms of limitation of motion as well as subluxation and/or lateral instability, he may be entitled to two separate ratings. However, at present, the medical evidence of record is inadequate to determine whether two separate ratings are in order, and, if so, the proper level of compensation under those ratings. In light of the foregoing, this claim is remanded for the following further development: 1. The veteran should be scheduled for a VA examination of the right knee. The examiner should review the claims file prior to conducting the examination. The examiner is asked to perform all necessary tests and studies to determine whether the veteran has any subluxation or lateral instability. The examiner should state in his/her written findings the degree of subluxation or lateral instability, if any, expressed in terms of "severe", "moderate", or "mild". In addition, the examiner should perform range of motion testing and set forth all findings in the written report. The examiner should state the degree of flexion and extension at which the veteran experiences pain in his right knee. The examiner should further state the degree to which the veteran's right knee is limited in function due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 2. The RO should readjudicate the veteran's claim for increased evaluation for his right knee disability. In reaching a determination, the RO should consider the findings of the VA examiner regarding the degree of subluxation and/or lateral instability, if any. The RO should also consider whether a separate rating for limitation of flexion or extension is warranted. See Esteban v. Brown, 6 Vet. App. 259 (1994). In its evaluation of the veteran's right knee, the RO should assign appropriate diagnostic codes to signify the specific symptomatology caused by different aspects of the disability. For example, the veteran may be entitled to separate ratings under Diagnostic Codes 5257 and 5261. 3. If the RO's decision remains adverse to the veteran, both he and his representative should be furnished a supplemental statement of the case, and should be provided an appropriate period of time in which to respond thereto. Thereafter, the case should be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional information and afford the veteran his procedural rights, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). R. F. WILLIAMS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).