Citation Nr: 0000216 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 98-18 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for service-connected arthrotomy of the left knee, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for service-connected arthrotomy of the right knee, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. J. Bohanan, Counsel INTRODUCTION The veteran served on active duty from January 1965 to March 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision of the No. Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, granted the veteran an increased rating for his service-connected left knee disability from 20 to 30 percent disabling, and granted an increased rating for his service-connected right knee disability from 20 to 30 percent disabling. The veteran raised the issue of entitlement to a total disability rating based upon individual unemployability in his substantive appeal, received in November 1998, and again in an April 1999 statement. This issue has not yet been adjudicated and is referred to the RO for appropriate action. FINDINGS OF FACT 1. Sufficient evidence for an equitable disposition of the veteran's claims has been obtained. 2. Range of motion of the veteran's knees is from zero degrees extension to 115 degrees flexion, with x-ray evidence of arthritis and pain, bilaterally. 3. The veteran's bilateral knee disability is otherwise manifested by additional disability of instability, effusion, crepitus, complaints of locking, swelling and giving way, and the necessity of using a cane for ambulation and wearing a brace on the left, that is productive of severe other impairment of the knees. CONCLUSIONS OF LAW 1. The criteria for a separate 10 percent disability evaluation, and not higher, for x-ray evidence of arthritis with painful motion for service-connected arthrotomy of the left knee are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5003, 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (1999); VAOPGCPREC 9-98 (August 14, 1998). 2. The criteria for a separate 10 percent disability evaluation, and not higher, for x-ray evidence of arthritis with painful motion for service-connected arthrotomy of the right knee are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5003, 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (1999); VAOPGCPREC 9-98 (August 14, 1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has presented well-grounded claims for increased disability evaluations for his service-connected knee disabilities within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). In addition, the facts relevant to the issues on appeal have been properly developed and the statutory obligation of the VA to assist the veteran in the development of his claims has been satisfied. 38 U.S.C.A. § 5107(a). Service-connected disabilities are rated in accordance with a schedule of ratings which are based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon a lack of usefulness in self-support. 38 C.F.R. § 4.10 (1999). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (1999), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (1999). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). In considering the severity of a disability it is essential to trace the medical history of the disability. 38 C.F.R. §§ 4.1, 4.2 (1999). Nevertheless, past medical records do not take precedence over current findings in determining whether to increase a disability rating, although a rating specialist is directed to review the recorded history of disability to make a more accurate evaluation. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran was granted service connection for arthrotomy of the left and right knees in October 1970. Each knee was evaluated as 10 percent disabling for slight impairment under Diagnostic Code 5257, with a combined disability evaluation of 20 percent. The veteran filed for an increased rating in June 1989, and a VA examination was conducted in August 1989. He complained of swelling, stiffness, numbness and pain in both legs. He claimed that his legs had been progressively worsening. He used a cane to assist with walking. He reported that his left knee was more unstable than the right. The examiner observed only minimal joint effusion on the right. The veteran had full extension and flexion to 20 degrees past 90 degrees. He had pain to palpation about the right knee, mostly over the medial collateral and meniscus area, although there was some pain on the lateral side also. He had moderate effusion on the left. Extension was nearly straight. He had flexion to 90 degrees and then had pain. There was considerable pain to stress medially and laterally. Drawer sign was unstable. X-rays indicated no abnormality. The RO granted the veteran an increased rating for his left knee disability from 10 to 20 percent in an October 1989 rating decision, effective May 1989. His combined disability evaluation was 30 percent. A VA examination was conducted in September 1990. The veteran reported that his knees occasionally locked and gave way. He used a cane at all times, but did not wear braces or Ace bandages. He reported edema after standing. Examination revealed an 8 centimeter medial vertical scar on the right knee and a 13 centimeter medial vertical scar on the left knee. The veteran could extend to 0 degrees and flex to 90 degrees bilaterally. He had slight edema, but no effusion or deformities were noted. He had tenderness along the medial joint lines. He ambulated with a marked limp. He had ligamentous laxity. He squatted with extreme difficulty. Crepitus was felt with motion. X-rays were normal. Arthrotomy of the knees was diagnosed. The RO granted the veteran an increased rating from 10 to 20 percent disabling for his right knee disability in an October 1990 rating decision, effective September 1990. His combined disability evaluation was 40 percent. VA outpatient treatment records show that the veteran was treated on several occasions at the orthopedic clinic for complaints of bilateral knee pain assessed as bilateral patellofemoral syndrome in 1989. X-rays revealed mild degenerative joint disease, and he continued to be followed for complaints of knee pain. A July 1992 entry reported trace left effusion and bilateral 4+ marked grind. There was medial and lateral facet tenderness with no instability. There was joint line tenderness. X-rays revealed minimal degenerative joint disease and minimal medial joint space narrowing. A VA examination was conducted in November 1992. The veteran reported that his left knee seemed to "go out of place" about once a week and lock up at times. He complained of a dull aching pain with swelling and stiffness of both knees, increased with prolonged standing, walking, kneeling, crouching, and stooping. The examiner observed that he walked with a left limp and used a cane. His station was normal. He had an elastic bandage around his left knee. He had a satisfactory heel and toe walk. There was tenderness of the medial and lateral collateral ligaments bilaterally. There was no deformity, swelling, warmth, or erythema. Movement of both patellae caused pain. There was a grating sensation of the left patella. There was mild lateral and moderate anterior instability of the left knee. The right knee was stable. He had flexion to 120 degrees and extension to 0 degrees on the right and flexion to 105 degrees and extension to 15 degrees on the left. X-rays of both knees were normal. A VA examination was conducted in December 1994. The veteran continued to complain of pain which increased with activity. He claimed that his left knee was unstable. The examiner observed that he walked with a limp on the left leg and used a hand cane. There were surgical scars over both knees. He was unable to walk on his toes. His heel walk was slow. There was bilateral medial joint line tenderness. There was no swelling, deformity, weakness, redness, heat, subluxation, lateral instability, nonunion or malunion. Range of motion was 0 degrees extension to 110 degrees flexion on the right, and 0 degrees extension to 90 degrees flexion on the left. X-rays revealed no bone or joint abnormalities. X-rays in October 1997 revealed mild degenerative joint disease with no change since 1993. Range of motion of the knees was from 0 to 125 degrees. More recently, the veteran sought re-evaluation of the ratings assigned for his service-connected knee disorders in February 1998. A VA examination was conducted in March 1998. The veteran reported that his right knee occasionally locked with a popping sensation and that his left knee would collapse. Examination revealed that he walked with a cane in his left hand and preferred to stand with his left knee flexed. There was no knee joint effusion. He stood with a bilateral 10 degree genu valgum. Palpation of the posterior right knee joint revealed no masses and did not appear to be tender. In a standing position, when the left popliteal space was lightly stroked, the appellant flexed and withdrew his knee. He had a tendency to stand with his left knee flexed, but passively could be brought to a neutral position of zero. Both knees showed a range of 0 to 115 degrees when performed actively in the supine position. He exclaimed with pain in both knees if passive assistance was done. Both knees showed stable anterior cruciate systems in active and passive testing. The collaterals were stable, though slightly flexed. There was retropatellar grating to a rather marked degree on the right side, and torsional testing of the left knee revealed a snap in the posterior medial joint line in its most posterior point. The veteran had excellent body to the vastus medialis muscle on either side. He was not examined in the prone position secondary to complaints of pain and muscle resistance. Well-healed, slightly widened scars were present on both knees. X-rays of the veteran's right knee showed degeneration of the right knee joint, particularly in the medial compartment, with spur formation on the appositional surface between the femur and the tibia. The retropatellar groove showed an irregularity in the lateral prominence of the patellar groove and some irregularity that was early on the retropatellar surface in the corresponding area. X-rays of the veteran's left knee showed maintenance of the joint space to be evenly distributed, but there was a suggestion of overall narrowing of both the medial and lateral compartmental heights. Retropatellar view of the left knee showed an irregularity in the medial patellar facet with what may be a nidus in the center of an osteochondritic area. The lateral projection of the patella on the left showed spur formation in the superior pole. Both knees showed prominent spurring of the tibial spines, particularly in the left. The examiner's impression was of degenerative arthritis, right knee, with chondromalacia of the patella, grade 2; chondromalacia of the patella, left knee, with nidus medial facet; very early degenerative changes, joint disease, left knee; and preoperative state, left knee, according to history given by the appellant. The examiner noted that the veteran was inhibited due to pain and that the examination was therefore inhibited. He opined that the appellant would not be capable of prolonged walking, repetitive squatting or weight lifting of more than 10 to 15 pounds. He would have difficulty in stair climbing in the standard fashion. Additional VA treatment records reported that the veteran continued to be followed for complaints of knee pain. Bilateral degenerative joint disease of the knees was indicated in March 1998, and an arthroscopy, medial and lateral partial meniscectomy and chondroplasty of the left knee was performed in April 1998. At his follow-up appointment in May 1998, status post left knee arthroscopy with meniscus repair, the veteran complained of occasional painful joint crepitus. The examiner observed that his joint was diffusely swollen with no crepitus. In June 1998, the veteran was awarded a temporary total rating under 38 C.F.R. § 4.30 for the left knee from April 29, 1998, to May 31, 1998. The RO also assigned increased disability ratings of 30 percent for each knee. The applicable rating criteria for the knee and the leg are as follows: Diagnostic Code 5256: Knee, ankylosis of: Rating Extremely unfavorable, in flexion at an angle of 45° or more..........................60 In flexion between 20° and 45°.......................................................... .............50 In flexion between 10° and 20°.......................................................... .............40 Favorable angle in full extension, or in slight flexion between 0° and 10°.....30 Diagnostic Code 5257 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe....................................................... ......................................................30 Moderate..................................................... ....................................................20 Slight....................................................... ........................................................10 Diagnostic Code 5258 Cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint........................................................ .20 Diagnostic Code 5259 Cartilage, semilunar, removal of, symptomatic.............10 Diagnostic 5260 Leg, limitation of flexion of: Flexion limited to 15°.......................................................... ..............................30 Flexion limited to 30°.......................................................... ..............................20 Flexion limited to 45°.......................................................... ..............................10 Flexion limited to 60°.......................................................... ................................0 Diagnostic Code 5261 Leg, limitation of extension of: Extension limited to 45°.......................................................... ..........................50 Extension limited to 30°.......................................................... ..........................40 Extension limited to 20°.......................................................... ..........................30 Extension limited to 15°.......................................................... ..........................20 Extension limited to 10°.......................................................... ..........................10 Extension limited to 5°........................................................... .............................0 Diagnostic Code 5262 Tibia and fibula, impairment of: Nonunion of, with loose motion, requiring brace..............................................40 Malunion of: With marked knee or ankle disability................................................... ...........30 With moderate knee or ankle disability................................................... ........20 With slight knee or ankle disability................................................... ..............10 Diagnostic Code 5263 Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated).......................................10 See 38 C.F.R. § 4.71a (1999). Degenerative arthritis is rated under a combined diagnostic code which takes into account both the x-ray evidence of degenerative changes of the knee as well as the resulting limitation of motion, if any, of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (1999). The criteria of Diagnostic Code 5003 permits a 10 percent rating to be assigned for impairment caused by arthritis where there is some limitation of motion of a major joint or a group of minor joints but the limitation of motion is not so great as to meet the requirements for a compensable rating under the criteria for rating limitation of motion of the specific major joint or group of minor joints. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (1999). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating may be assigned for arthritis "[w]ith [x]-ray evidence of involvement of [two] or more major joints or [two] or more minor joint groups." 38 C.F.R. § 4.71(a), Diagnostic Codes 5003, 5010 (1999). For the purposes of rating disability from arthritis, VA regulations consider major joints to be the shoulder, elbow, wrist, hip, knee, and ankle. 38 C.F.R. § 4.45(f) (1999). A normal range of motion for the knee by VA standards is from 0 degrees, in which position the leg is extended straight out, to 140 degrees, in which position the leg is flexed backward. See 38 C.F.R. § 4.71, Plate II, Flexion and Extension of the Knee. Regarding the veteran's knee disabilities, it is evident from the record that there is impairment of the knees caused by both arthritic involvement and chondromalacia/patellofemoral syndrome. In cases where there are distinct disabilities caused from arthritis of the knee as well as other impairment of the knee, separate evaluations may be assigned. See VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Code 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56704. Each of the veteran's knees is evaluated as 30 percent disabling due to severe impairment under 38 C.F.R. § 4.71a Diagnostic Code 5257 (1999). There is no higher schedular disability evaluation provided under diagnostic codes 5257, 5258, 5259 or 5263. As there is no medical evidence of ankylosis of the knees (diagnostic code 5256) or malunion or nonunion of the tibia and fibula (diagnostic code 5262), consideration of these diagnostic codes is also not in order. The range of motion of the veteran's knees is shown to be from zero degrees extension to 115 degrees flexion. In order to warrant a compensable disability evaluation under the range of motion codes, extension would have to be limited to 10 degrees or flexion would have to be limited to 45 degrees, which was not the case. Moreover, although the veteran has x-ray evidence of arthritis of the knees, limitation of motion of the knees is not severe enough to warrant a zero percent rating under diagnostic codes 5260 or 5261, and a separate rating is not warranted on this basis. See VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-98 (August 14, 1998). Even though there was noncompensable limitation of motion of the knees, consideration should have been given, in determining whether a separate compensable rating is warranted, to painful motion under 38 C.F.R. § 4.59, which provides in part that "[w]ith any form of arthritis, painful motion is an important factor of disability." 38 C.F.R. § 4.59 (1999). In DeLuca v. Brown, 8 Vet. App. 202 (1996), the United States Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) (Court) emphasized the importance, in cases involving subjective complaints of pain, of the Board's mindfulness of VA regulations pertaining to the consideration of pain in determining the appropriate disability rating. 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). The Court held that 38 C.F.R. § 4.40 was not subsumed by the diagnostic codes under which a veteran's disabilities are rated, and that the Board must consider the "functional loss" of a musculoskeletal disability under 38 C.F.R. § 4.40 (1995) apart from any consideration of the veteran's disability under the diagnostic codes. DeLuca, 8 Vet. App. 202, 206 (1995). The Court has also held that the Board may not base its conclusions about the degree of disability" on a VA medical examination which fail[s] to adhere to the mandate of 38 C.F.R. § 4.40 that examinations upon which ratings are based adequately portray functional loss due to pain, and determine whether pain 'was evidenced by the visible behavior of the claimant' . . . ." Voyles v. Brown, 5 Vet. App. 451, 453(1993), citing Quarles v. Derwinski, 3 Vet. App. 129, 140 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In this regard, the Board notes that section 4.59 does not provide that a compensable rating be assigned for mere complaints of pain but instead notes that the medical examiner should take care to note facial expression or wincing on pressure or manipulation, and muscle spasm to assist in identifying truly painful joints. In this case, the veteran has complained of pain. In 1998, the examiner noted that the veteran was inhibited due to pain. The veteran exclaimed with pain in both knees if passive assistance was done. The examiner opined that the veteran would not be capable of prolonged walking, repetitive squatting or weight lifting of more than 10 to 15 pounds. He would also have difficulty in stair climbing in the standard fashion. See 38 C.F.R. §§ 4.40, 4.45 (1999). In view of the foregoing, the Board concludes that the complaints of pain on motion are sufficiently supported by objective findings to warrant a separate 10 percent rating for the veteran's service-connected right and left knee disabilities, respectively. 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5010, 5260, 5261 (1999); VAOPGCPREC 9- 98 (August 14, 1998); DeLuca v. Brown, 8 Vet. App. 202 (1996); Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). However, in the absence of any significant limitation of motion of the knees on VA examination in 1998, there is no evidence that the painful motion associated with either of the veteran's knee disabilities (right or left) more nearly approximates the next higher or 20 percent rating which may be provided for limitation of extension to 15 degrees or of flexion to 30 degrees. 38 C.F.R. § 4.7, 4.71a, Diagnostic Codes 5260, 5261 (1999). Therefore, the Board concludes that, in addition to the 30 percent disability rating for each knee currently assigned for severe impairment, a separate 10 percent rating for arthritis with painful motion of each knee is warranted. This combined 40 percent rating for each of the veteran's lower extremities is the highest possible under the appropriate regulations. 38 C.F.R. § 4.68. Finally, the evidence does not reflect, and the veteran does not report, that the postoperative scars are productive of pain, tenderness, limitation of function or ulceration. On VA examination in 1998, the scars were described as well healed. Thus, there is no basis for assigning a separate compensable evaluation for the postoperative scars. 38 C.F.R. § 4.7, 4.71a, 4.118, Diagnostic Codes 7803, 7804, 7805 (1999); See Esteban v. Brown, 6 Vet. App. 259 (1994). ORDER Entitlement to a separate 10 percent disability rating, and not higher, for x-ray evidence of arthritis with painful motion for service-connected arthrotomy of the left knee is granted, subject to controlling regulations regarding the payment of monetary benefits, said evaluation to be separate from the existing 30 percent evaluation for severe impairment of the left knee. Entitlement to a separate 10 percent disability rating, and not higher, for x-ray evidence of arthritis with painful motion for service-connected arthrotomy of the right knee is granted, subject to controlling regulations regarding the payment of monetary benefits, said evaluation to be separate from the existing 30 percent evaluation for severe impairment of the right knee. P.M. DILORENZO Acting Member, Board of Veterans' Appeals