Citation Nr: 0003210 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 94-14 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for residuals of a left knee medial meniscus repair with traumatic arthritis. 2. Entitlement to a disability rating in excess of 20 percent for residuals of an injury to the right cruciate ligament. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from November 1966 to November 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In December 1996, the Board denied the veteran's claim of entitlement to service connection for carpal tunnel syndrome. The claims of increased ratings for left and right knee disabilities were remanded to the RO in December 1996 and April 1999 for further evidentiary development. The Board notes that, while a June 1993 rating decision denied entitlement to service connection for a left shoulder disorder, the veteran's August 1993 substantive appeal included his wish to appeal his claim for service connection for his right shoulder injury. The matter is referred to the RO to clarify if, by that statement, he wishes to raise a new claim that requires further development and adjudication. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable determination of the veteran veteran's claims has been obtained by the RO. 2. The veteran's service-connected residuals of left knee medial meniscus repair with traumatic arthritis are manifested by manifested by symptoms including pain with use, slight limitation of motion, crepitus, and feelings of locking and giving way. 3. The veteran's service-connected residuals of an injury to the right cruciate ligament with traumatic arthritis are manifested by symptoms including pain with use, slight limitation of motion, crepitus, and feelings of locking and giving way. 4. The veteran's arthritis of the right and left knees is productive of painful motion. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for residuals of left knee medial meniscus repair with traumatic arthritis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4,71a, Diagnostic Code 5258 (1999). 2. The criteria for a disability rating in excess of 20 percent for residuals of an injury to the right cruciate ligament are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4,71a, Diagnostic Code 5258. 3. The criteria for a separate 10 percent evaluation for arthritis of the right knee with painful motion are met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, 5010 (1999). 4. The criteria for a separate 10 percent evaluation for left knee arthritis with painful motion are met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, 5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). See also Fenderson v. West, 12 Vet. App. 119 (1999) (At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, i.e., "staged" ratings.). Upon review of the entire record, the Board concludes that all relevant facts have been developed and that no further duty to assist the veteran is required. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of his service- connected left and right knee disabilities, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is inadequate for rating purposes. In addition, it is the judgment of the Board that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disabilities at issue. Factual Background A March 1987 rating decision granted service connection for a left knee medial meniscectomy, postoperative, with traumatic arthritis that was symptomatic and a right knee cruciate deficiency, status post arthroscopy with traumatic arthritis. The RO awarded a 10 percent disability evaluation for each knee under Diagnostic Code 5010-5259. In June 1992, the RO received the veteran's claim for increased ratings for his service-connected right and left knee disabilities. Associated with the claims files are VA and private medical records and examination reports and records from Whiteman Air Force Base (AFB), dated from 1989 to 1999. In a June 1992 statement, Harry G. Miller, M.D., said the veteran complained of left knee problems. Dr. Miller found that the veteran's left knee was somewhat bulky and slightly unstable with the anterior drawer sign being grade 1-2. The medial joint opened somewhat. There was some crepitation of the patella and good alignment. The veteran also reported right knee difficulty with slight medial collateral laxity and the drawer sign was less on the right than the left. Upon review of x-rays, Dr. Miller concluded that the left knee appeared to have degenerative joint disease. Medication was prescribed, along with muscle strengthening and avoidance of certain strenuous activity. The veteran, who was 44 years old, underwent VA orthopedic examination in December 1992 and reported a left knee arthrotomy and partial meniscectomy in 1974 and a diagnostic arthroscopy of his right knee in 1983. The veteran was a police officer and had some knee pain and difficulty that was job-related. Examination findings of the knees revealed no swelling or gross deformity with 5 degrees of genu valgus, bilaterally. All ligaments were grade zero except the right anterior cruciate ligament that was approximately grade 2 with a soft end-point that could indicate the veteran had a complete anterior cruciate ligament tear. Range of motion was flexion to 135 degrees symmetrically in full extension. A radiology report revealed hypertrophic changes predominantly involving the medial and anterior compartments. The diagnoses were status post meniscal injury to left knee with partial meniscectomy and status post partial anterior cruciate ligament tear of the right knee with secondary retrains. The examiner commented that both injuries could be debilitating but the veteran was able to maintain his normal job status. A June 1993 outpatient record from Whiteman AFB indicates that the veteran complained of his left knee locking up. The assessment was degenerative joint disease of the left knee with a need to rule out a loose body. An August 1993 VA orthopedic clinic record documents that the veteran complained of increased left knee pain and vague symptoms of medial instability. He had popping and pain. Examination findings revealed increased drawer and Lachman signs and a well healed surgical scar. The assessment was loose body versus meniscus tear, probable old ACL (anterior cruciate ligament) description as well); removal of the loose body was recommended. At his August 1994 personal hearing at the RO, the veteran testified that he experienced knee swelling, pain and stiffness. If he stood in one spot too long, his knee locked occasionally, his left knee gave out periodically, but more frequently than his right knee, and aspirin-type medication was prescribed for the pain and swelling. It was difficult for the veteran to ascend and descend stairs. The veteran worked for Tyson's in a job that primarily involved standing and walking around. Statements from two of the veteran's former supervisors, received in April 1995, are to the effect that the veteran was observed to stumble or fall because of his knees. He was observed to walk with a noticeable limp when his knee(s) gave out. In a January 1997 statement, Dr. Miller said that the veteran had bilateral knee problems, with a history of a torn anterior cruciate on the right with instability and mild swelling. There was a large surgical scar on the left knee with the medial collateral ligament repair and absence of his medial meniscus, with some joint instability and the appearance of arthritic joint. The veteran's factory job required his standing and he developed back pain that Dr. Miller opined might be due to the knee disorder. In March 1997, the veteran submitted copies of his 1995 and 1996 work records that indicated he took less than two days of sick leave. In an April 1997 statement, the veteran stated that he used vacation time when he was unable to work. In April 1997, the veteran underwent VA orthopedic examination and complained of bilateral knee pain that appeared symmetrical. He described occasional popping and clicking in both knees and pain with prolonged standing and walking. Over the past three months, the veteran had a slight increase in radiating pain over the lateral aspect of his right knee. He reported that his knees occasionally gave out but he had not fallen and he denied catching or locking type of symptomatology. He denied swelling and night pain. Objectively, the veteran did not appear to be in acute distress. His left lower extremity showed no knee effusion with knee range of motion from 5 to 125 degrees and notable crepitation with range of motion. There was a well-healed medial knee incision. There was mild to moderate tenderness along both medial and lateral joint. Patella mobility was normal. Anterior drawer, posterior drawer, Lachman and pivot shift maneuvers were negative. McMurray's maneuver was also negative. Strength was 5/5 in knee flexion and extension. Examination of the right lower extremity revealed no knee effusion, range of motion from 0 to 124 degrees and mild tenderness along the lateral joint line. Lachman maneuver and anterior drawer were each 1+ and posterior drawer and pivot shift maneuvers were negative. McMurray's maneuver was negative. Patellar mobility appeared normal. There were small, well-healed incision sites consistent with the veteran's prior arthroscopic surgery. X-rays revealed mild degenerative changes bilaterally, more prominent in the right medial compartment and patellofemoral compartment. The diagnoses were bilateral knee post-traumatic degenerative joint disease that, in the VA examiner's opinion, most likely was related to the veteran's previous knee pain. The doctor opined that during episodes of knee pain the veteran's functional ability with prolonged periods of standing or walking could be significantly limited. According to a June 1998 VA examination report, the veteran described episodes of knee locking with prolonged standing or sitting and hearing popping sounds when he started to move. He never fell and his pain was localized to the lateral and medial aspects of both knees. The veteran said both knees hurt intermittently up to four to five times per week, but the pain did not cause him to limit his ability to work or ambulate and he denied knee swelling. He had bilateral knee pain when he walked more than one block with worsened pain in cold and very humid weather. The veteran denied knee pain that radiated into his back and denied any back pain. On examination, the veteran was observed to have a normal gait and walked without the aid of a cane or other prosthetic devices. Examination of the left lower extremity showed no left knee effusion or erythema, with an 8 centimeter (cm.) well healed medial knee scar, nonraised and nontender. Range of motion was 0-130 degrees. Symptoms of knee locking were not reproducible and crepitations were noted throughout the entire range of motion. Anterior and posterior drawer tests were negative, there was 1+ movement with varus and valgus force, McMurray test was negative, muscle strength was normal, there were no sensory deficits and there was no pain during range of motion testing. Right knee examination revealed no right knee effusion or erythema, knee range of motion from 0 to 129 degrees, no reproducible locking, anterior drawer test was 1+, posterior drawer test and McMurray tests were negative, there was 1+ movement with varus and valgus force and small well healed incision sites were noted. Muscle strength was normal with knee flexion and extension, intact sensation and crepitations noted throughout the entire range of motion with no pain during range of motion testing. The diagnoses were degenerative joint disease of both knees related to past history of trauma and surgery and symptoms of intermittent knee locking that might be attributable to degenerative joint disease, but the symptomatology was not reproducible on examination. According to an August 1999 VA orthopedic examination report, the veteran complained of intermittent left and right knee pain present on a daily basis that generally lasted four to six hours daily. He rated the pain a 5 or 6 out of 10 on a pain scale of 1 to 10 at times up to an 8 out of 10- about three to four days a week, generally at night after prolonged standing or sitting. The pain worsened with movement but was also present at rest with prolonged siting. Along with left knee pain, the veteran also had associated weakness, giving away, locking, fatigability and lack of endurance. There was no right knee stiffness, swelling, heat or redness. There was giving away, locking, fatigability and lack of endurance. The veteran took Motrin, 800 mg., twice daily. With more severe symptomatology, three to four days a week, the pain was more constant and of longer duration and increased severity. Prolonged sitting and standing, walking and damp and cold weather exacerbated his symptoms. The veteran was able to do his normal activities and work, as a supervisor at Tyson's Foods, through flare ups but required more rest, including two 30 minute rests in his work day. During flare- ups, the veteran said his pain was more severe when he bent his knees with range of motion exercises. The veteran denied use of crutches, braces, canes or corrective shoes and said he tried a brace in the past that made the pain worse. He denied any episodes of recurrent dislocation. Examination of the right knee revealed flexion of 0 to 120 degrees without pain but from 120 to 130 degrees there was pain. There was full extension and severe crepitation with popping. There was no focal tenderness. Ligaments were stable without any abnormalities. Small arthroscopic surgical scars that were well healed were identifiable. Left knee examination revealed range of motion of 0 to 120 degrees without pain and pain from 120 to 130 degrees with full extension and severe crepitation but no popping. There was a large scar on the left medial aspect that was approximately 13 cm. in length. The ligaments were stable without any instability. There was no evidence of incoordination and no atrophy of the leg muscles. The diagnosis was bilateral traumatic arthritis of the knees. In September 1999, the RO assigned a 20 percent rating for each service-connected knee disability under Diagnostic Code 5010-5258. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4 (1998). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1998). 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; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). It is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, 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. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In DeLuca v. Brown, 8 Vet. App. 202 (1995). the U.S. Court of Appeals for Veterans Claims (known as the U.S. Court of Veterans Appeals prior to March 1, 1999) held that 38 C.F.R. §§ 4.40 and 4.45 were not subsumed into the diagnostic codes under which a veteran's disabilities are rated. Therefore, the Board has to consider the "functional loss" of a musculoskeletal disability under 38 C.F.R. § 4.40, separate from any consideration of the veteran's disability under the diagnostic codes. DeLuca v. Brown, 8 Vet. App. at 206. With any form of arthritis, painful motion is an important factor of disability. See 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight bearing and nonweight-bearing and, if possible, with range of the opposite of the opposite undamaged joint. 38 C.F.R. § 4.59. A precedent opinion of the VA General Counsel, VAOPGCPREC 23- 97, held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, citing Esteban. In subsequent opinion, VA it was held that a separate rating for arthritis could also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. See VAOPGCPREC 9-98. The veteran's left and right knees were previously rated under Diagnostic Code 5010-5259 that provides for a maximum 10 percent rating for symptomatic removal of semilunar cartilage. The left and right knee disabilities are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5258, for arthritis and semilunar dislocated cartilage with frequent episodes of "locking," pain and effusion into the joint. A 20 percent rating, the maximum assignable under this diagnostic code, is warranted for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Since Diagnostic Code 5258 is not predicated on loss of range of motion, 38 C.F.R. §§ 4.40 and 4.45, with respect to pain, do not apply. Johnson v. Brown, 9 Vet. App. 7 (1996). Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a 20 percent rating is assigned for moderate impairment of the knee and a maximum 30 percent rating is assigned for severe impairment of a knee, as measured by the degree of recurrent subluxation or lateral instability. Traumatic arthritis, substantiated by x-ray findings, is rated as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5010 (1999). Degenerative arthritis, if substantiated by x-ray findings, it is rated pursuant to the criteria given under Diagnostic Code 5003 that provides for rating the disability on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of ratable limitation of motion, that includes the noncompensable levels under Diagnostic Codes 5260-61, see infra for criteria; see supra, VAOPGCPREC 9-98, a 10 percent rating applies where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation requires x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The ratings based on x-ray findings are not to be combined with ratings based on limitation of motion. The knee is considered a major joint. 38 C.F.R. § 4.45(f). Limitation of motion of the knee would be rated under Diagnostic Codes 5260 or 5261, for limitation of flexion or extension of the leg. Diagnostic Code 5260 provides for a noncompensable evaluation if flexion is limited to 60 degrees. A 10 percent evaluation applies where flexion is limited to 45 degrees, a 20 percent evaluation requires flexion limited to 30 degrees and a 30 percent evaluation requires flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 provides for a noncompensable evaluation for extension limited to five degrees, a 10 percent evaluation for extension limited to 10 degrees and a 20 percent evaluation requires extension limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 30 percent evaluation requires extension limited to 20 degrees, extension limited to 30 degrees warrants a 40 percent evaluation and extension limited to 45 degrees warrants a 50 percent evaluation. Id. In this case, the medical evidence indicates that the veteran does not suffer from instability or subluxation of the right or left knee. The 1999 VA examiner specifically stated that the veteran does not have episodes of recurrent dislocation and x-rays revealed no evidence of fracture or dislocation. Ligaments were stable without abnormalities and there was no evidence of muscle atrophy, effusion or erythema. Further, the medical evidence indicates that the veteran's range of motion of his left and right knees precludes consideration of a higher rating under the Diagnostic Codes governing ankylosis and limitation of flexion and extension; that is, his left and right knees are not ankylosed, the flexion in each knee is not limited to 30 degrees and his extension in each knee is not limited to 15 degrees. See Diagnostic Codes 5256, 5260, 5261. There is also no evidence of malunion of the tibia and fibula in the right or left knee to satisfy the criteria for Diagnostic Code 5262. Accordingly, given the evidence of record, an increased evaluation is not warranted under these provisions. However, a separate rating under Diagnostic Codes 5003, 5010 can be granted on painful motion under 38 C.F.R. § 4.59. See VAOPGCPREC 9-98. In Hicks v. Brown, 8 Vet. App. 417 (1995), the court noted that Diagnostic Code 5003 and 38 C.F.R. § 4.59 deem painful a motion of a major joint or group of minor joints caused by degenerative arthritis that is established by x-ray evidence to be limited motion even though a range of motion may be possible beyond the point when pain sets in. In the present case, degenerative changes in both knees were shown in x-ray findings in April 1997 at VA examination and, x-ray findings in August 1999 showed mild degenerative findings in the right knee and left knee degenerative joint disease, slightly greater than on the right. Accordingly, an additional evaluation may be available to the veteran under Diagnostic Codes 5003 or 5010. Under the codes governing arthritis, limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When the limitation of motion is noncompensable, a rating of 10 percent will be assigned for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Id. As noted above, limitation of flexion of the knee is evaluated under Diagnostic 5260. Flexion limited to 60 degrees warrants a noncompensable evaluation and flexion limited to 45 degrees warrants a 10 percent evaluation. Limitation of extension of the knee is evaluated under Diagnostic Code 5261. Extension limited to 5 degrees warrants a noncompensable evaluation; and extension limited to 10 degrees warrants a 10 percent evaluation. At his August 1999 VA examination, the veteran was noted to have range of motion of the right and left knees from zero to 120 without any pain, but from 120 to 130 degrees there was pain, with zero to 140 degrees being normal. See 38 C.F.R. § 4.71, Plate II (1999). The VA examiner noted full extension in both knees. Based on this evidence, the criteria for a compensable evaluation under Diagnostic Code 5260 for limitation of flexion and the criteria for a compensable evaluation under Diagnostic 5261 for limitation of extension are not met. However, as noted above, a separate rating is also available for painful motion, with consideration of functional loss. VAOPGCPREC 9-98, see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Under 38 C.F.R. § 4.59, in any form of arthritis, painful motion is an important factor of disability. It is the intention of the regulations to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The medical evidence documents that the veteran has giving away, locking, fatigability and lack of endurance, minimal loss due to pain and stiffness. The veteran has testified to his left and right knee pain and stiffness. Moreover, in April 1997, the VA examiner diagnosed bilateral post- traumatic degenerative joint disease, mostly related to the veteran's previous knee pain and commented that, during episodes of knee pain, the veteran's functional ability with prolonged periods of standing or walking could be significantly limited. Given the medical evidence and the veteran's credible statements, the Board finds that the record establishes that he has pain on motion and fatigability in his right and his left knees due to arthritis and that an additional 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 is warranted for the right knee and the left knee. A 20 percent rating for arthritis is not appropriate as the veteran does not have arthritis involving more than two major joints or minor joint groups, nor has limitation of motion been shown to the degrees required by the rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 52, 5260, 5261. Finally, the medical evidence has not shown that the surgical scars of the left or right knees are poorly nourished with repeated ulceration, or painful and tender on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 (1998). The left knee scar observed on VA examination in June 1998 was found to be well healed, nonraised and nontender and right knee scars were described as well-healed. Accordingly, a separate compensable rating under the holding in Esteban v. Brown, 6 Vet. App. 259 (1994), is not warranted. The benefit of the doubt has been resolved in the veteran's favor to the extent indicated for the service-connected left knee and the service-connected right knee. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5258. ORDER A disability rating in excess of 20 percent is denied for residuals of left medial meniscus repair with traumatic arthritis. A disability rating excess of 20 percent is denied for residuals of an injury to the right cruciate ligament. A separate 10 percent evaluation for arthritis of the right knee with painful motion and fatigability is granted, subject to the provisions governing the award of monetary benefits. A separate 10 percent evaluation for arthritis of the left knee with painful motion and fatigability is granted, subject to the provisions governing the award of monetary benefits. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals