Citation Nr: 0004078 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 96-10 739 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. The propriety of the initial 10 percent disability rating for the service-connected internal derangement of the right knee. 2. The propriety of the initial 10 percent disability rating for the service-connected instability of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph W. Spires, Associate Counsel INTRODUCTION The veteran served on active duty from September 1991 to September 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 1995 rating decision of the RO. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's service-connected right knee disability is not shown to be productive of a functional limitation due to pain consistent with flexion limited to more than 45 degrees. 3. The veteran's service-connected right knee disability is not shown to be productive of more than slight recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial evaluation in excess of 10 percent for the service-connected internal derangement of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71a including Diagnostic Codes 5003, 5010, 5260 (1999). 2. The criteria for the assignment of an initial evaluation in excess of 10 percent for the service-connected instability of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71a including Diagnostic Code 5257 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claims are plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran claims that a service-connected disability is more severely disabling than as rated, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Shipwash v. Brown, 8 Vet. App. 218 (1995). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence has been obtained and that no further assistance to the veteran with respect to this claim is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's right knee disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Factual Background A December 1994 VA report of medical examination noted that the veteran had suffered a torn ligament of the right knee in 1993 and that it had been surgically reconstructed. The report noted the veteran's right knee range of motion upon flexion was to 130 degrees and to 0 degrees upon extension. The report also noted that no swelling or deformity was present. Additionally, the VA report indicated that the veteran reported right knee pain at night and in the morning and that he experienced discomfort after walking more than one mile and experienced pain after standing for a half-hour. A July 1995 VA outpatient progress note indicated that the veteran had recently reinjured his right knee and that he had experienced pain, swelling, popping and clicking of his right knee. The progress note reported the veteran's right knee range of motion as from 0 to 120 degrees and noted the presence of effusion. A November 1995 VA discharge summary report noted a 1993 right knee anterior cruciate ligament (ACL) reconstruction and subsequent reinjury. The report also noted that the veteran's right knee showed minimal effusion, no joint line tenderness, a negative response to a McMurray test, a positive anterior drawer, a positive pivot shift, a positive response to a Lachman test and mild to moderate effusion. The report noted that the veteran tolerated a November 1995 ACL reconstruction well and had been released the next day. An August 1996 VA report of orthopedic examination noted the veteran's subjective complaints regarding his right knee as morning stiffness, an inability to squat due to pain, instability when changing direction and discomfort when extending the knee. The report noted no evidence of redness, swelling or deformity and recorded the veteran's range of right knee flexion as 125 degrees and range of extension as 170 degrees. A September 1996 VA radiology report noted a metallic screw from previous surgery and stated that there were minimal osteoarthritic changes and no evidence of fracture, dislocation or subluxation. An August 1999 VA report of medical examination noted the veteran's history of an ACL reconstruction in 1993 and subsequent reinjury with a 1995 revision. The report noted that the veteran was not currently undergoing physical therapy. The report also noted that the veteran reported increased stiffness and occasional pain, swelling and "giving-way" associated with his right knee. The report also noted the veteran did not appear to experience any locking, fatigability, weakness, motor incoordination or lack of endurance associated with his right knee. The report also stated that the veteran used a hinged ACL brace on his right knee when he anticipated prolonged standing. Additionally, the VA report noted that the veteran reported that he could walk up to approximately one and a half miles without much discomfort. Finally, the report noted that the veteran did not report any episodes of dislocation or recurrent subluxation in his right knee. The August 1999 VA report of medical examination noted a "significant quadriceps wasting" measured as a 1.5cm reduction, as compared to the left side, and a deep tenderness over the anterior aspect of the right knee. The report noted that the veteran could "actively flex his right knee from 0 to 120 degrees beyond which his discomfort start[ed]." The report also noted that the knee could not be passively flexed more than 130 degrees. Additionally, the VA report indicated that, upon stress testing, the Lachman's test was mildly positive and that the anterior drawer test was "grade I positive." The report noted that the radiographs showed that the metallic screws were holding the graft in a satisfactory position and that the joint space was well maintained. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's 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. Regulations require that where there is a question as to which of two evaluations is to 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. Otherwise, the lower rating will be assigned. Id. VA regulations require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of disability. Medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. Functional impairment is based on lack of usefulness and may be due to pain, supported by adequate pathology and evidenced by visible behavior during motion. Many factors are for consideration in evaluating disabilities of the musculoskeletal system and these include pain, weakness, limitation of motion, and atrophy. Painful motion with the joint or periarticular pathology which produces disability warrants the minimum compensation. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59. (1999). Specifically, the applicability of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination, or pain on movement of a joint, must be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In July 1997, the Office of General Counsel of VA issued a Precedent Opinion which provided that a veteran who had arthritis and instability of the knee might be rated separately under Diagnostic Codes 5003 and 5257. O.G.C. Prec. Op. 23-97 (Jul. 24, 1997). Furthermore, the Office of General Counsel of VA has explained that, per DeLuca, Diagnostic Codes involving disability ratings for limitation of motion of a part of the musculoskeletal system do not subsume sections 4.40 and 4.45. O.G.C. Prec. Op. 9-98 (Aug. 14, 1998). In applying sections 4.40, 4.45, and 4.59, rating personnel must consider the claimant's functional loss and clearly explain what role the claimant's assertions of pain played in the rating decision. Id.; Smallwood v. Brown, 10 Vet. App. 93, 99 (1997). The veteran's service-connected internal derangement of the right knee is currently rated as 10 percent disabling under the provisions of 38 C.F.R. § 4.71a including Diagnostic Codes 5003, 5010 and 5260. Diagnostic Code 5010, traumatic arthritis, indicates that the disability should be rated as Diagnostic Code 5003, degenerative arthritis. Diagnostic Code 5003 establishes, essentially, three methods of evaluating degenerative arthritis which is established by x-ray studies: (1) when there is a compensable degree of limitation of motion, (2) when there is a noncompensable degree of limitation of motion, and (3) when there is no limitation of motion. Generally, when documented by x-ray studies, arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasms, or satisfactory evidence of painful motion. Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991), Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). Under Diagnostic Code 5260 a 10 percent evaluation requires leg flexion to be limited to 45 degrees. A 20 percent evaluation requires leg flexion to be limited to 30 degrees. A 30 percent evaluation, the maximum under Diagnostic Code 5260, requires leg flexion to be limited to 15 degrees. The veteran's service-connected instability of the right knee is currently rated as 10 percent disabling under the provisions of 38 C.F.R. § 4.71a including Diagnostic Code 5257. Under Diagnostic Code 5257, a 10 percent evaluation requires slight recurrent subluxation or lateral instability of the knee. A 20 percent evaluation requires moderate recurrent subluxation or lateral instability of the knee. A 30 percent evaluation, the maximum under Diagnostic Codes 5257, requires severe recurrent subluxation or lateral instability of the knee. Based on its review of the record, the Board finds that the veteran's internal derangement of the right knee is not shown to produce a limitation of function due to pain consistent with flexion limited to more than 45 degrees. Therefore, a rating higher than a 10 percent is not warranted under the provisions of 38 C.F.R. § 4.71a including Diagnostic Codes 5003, 5010 and 5260. There is no evidence of record indicating that the veteran exhibited a compensable limitation of extension. Prior to the veteran's second right knee injury in July 1995, the veteran's range of motion that of flexion measured to 130 degrees and extension to 0 degrees. Even after the veteran's July 1995 reinjury of his right knee, the July 1995 VA outpatient progress note indicated that the veteran's right knee range of motion was from 0 to 120 degrees, but did note that he had experienced pain, swelling, popping and clicking in his right knee. The August 1999 VA report of medical examination noted that the veteran could "actively flex his right knee from 0 to 120 degrees beyond which his discomfort start[ed]." Furthermore, based on its review of the record, the Board finds that the service-connected disability of the right knee is not shown to reflect more than slight instability. Therefore, higher than a 10 percent rating is not warranted under the provisions of 38 C.F.R. § 4.71a including Diagnostic Code 5257. There is no evidence of record indicating that the veteran exhibited symptoms sufficient to support the assignment of a rating greater than 10 percent based on findings of moderate or severe recurrent subluxation or lateral instability of the knee. Indeed, the August 1999 VA report of medical examination noted that the veteran had no episodes of dislocation or subluxation in his right knee and did not appear to have experienced locking, fatigability, lack of endurance, weakness or motor incoordination with his right knee. The report also noted that the radiographs showed the metallic screws were holding the graft in a satisfactory position and that the joint space was well maintained. Additionally, the report noted that the Lachman test was only mildly positive and that the anterior drawer test was only grade I positive. The Board has considered whether the veteran is entitled to a "staged" rating for his service-connected disabilities as prescribed by the Court in Fenderson v. West, 12 Vet. App. 119 (1999). However, the record indicates that the veteran's limitation of motion, including his symptoms of pain and discomfort, remained consistent, even after his July 1995 injury. The only exception to this was the recovery time after his November 1995 surgery, for which he was assigned a 100 percent convalescent rating under 38 C.F.R. § 4.30 from November 7 to December 31, 1995. Therefore, the Board finds that neither the internal derangement nor the instability of the right knee was shown to have warranted the assignment of more than a 10 percent rating at any time during the course of this appeal. Consideration has also been given to the provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant, as required by Schafrath v. Derwinski, 1 Vet. App. 589 and the Board has applied all the provisions of Parts 3 and 4 that would reasonably apply in this case. ORDER An increased rating for the service-connected internal derangement of the right knee is denied. An increased rating for the service-connected instability of the right knee is denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals