Citation Nr: 0004481 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 94-00 103 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for degenerative joint disease of the left hip, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for degenerative joint disease of the left knee, with osteoporosis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from September 1948 to September 1954. By a decision entered in March 1993, the RO denied claims of entitlement to increased ratings for: (1) a compound comminuted fracture of the left tibia and fibula, with 11/2- inch shortening and fusion of the left ankle, rated 40 percent disabling; (2) arthritis, lumbosacral spine, with lumbosacral strain due to fracture of the left tibia and fibula, rated 20 percent disabling; and (3) arthritis, left hip, with osteoporosis, left knee, rated 20 percent disabling. In February 1996, the Board of Veterans' Appeals (Board) denied claims (1) and (2), and remanded claim (3) to the RO for additional development. In February 1998, the Board remanded claim (3) a second time. Thereafter, in April 1999, while the case was in remand status, the RO discontinued the 20 percent rating assigned for arthritis, left hip, with osteoporosis, left knee, and replaced that rating with separate 10 percent evaluations for degenerative joint disease of the left hip and degenerative joint disease of the right knee, with osteoporosis. FINDINGS OF FACT 1. The veteran has pain on any motion of his left hip. It appears that the joint is affected with weakness and decreased endurance, and that active, repeated use of the joint is very difficult or impossible. 2. The veteran has pain on any motion of his left knee. It appears that the joint is affected with weakness and decreased endurance, and that active, repeated use of the joint is very difficult or impossible. CONCLUSIONS OF LAW 1. The criteria for an increased rating, to 40 percent, for degenerative joint disease of the left hip, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71 (Plate II), 4.71a (Diagnostic Codes 5003, 5010, 5251-53 (1999)). 2. The criteria for an increased rating, to 50 percent, for degenerative joint disease of the left knee, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71 (Plate II), 4.71a (Diagnostic Codes 5003, 5010, 5260-61 (1999)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that the disability ratings currently assigned for service-connected disorders of his left hip and knee are inadequate. He maintains that these disorders have worsened over time, resulting in progressively greater pain and immobility. In the context of a claim for an increased rating, a mere allegation that the disability has worsened is sufficient to establish a well-grounded claim. See Arms v. West, 12 Vet. App. 188, 200 (1999); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claims are "well grounded." 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. Arthritis of the hip is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, and 5251-53 (1999). A 10 percent rating is warranted if extension is limited to 5 degrees, if flexion is limited to 45 degrees, if adduction is limited such that the legs cannot be crossed, or if rotation is limited such that "toeing-out" more than 15 degrees is not possible. See 38 C.F.R. § 4.71 (Plate II) (1999). A 10 percent rating is also warranted if there is X-ray evidence of arthritis and objective evidence of limited motion, even if the limited motion would be otherwise noncompensable. A 20 percent rating is warranted if flexion is limited to 30 degrees, or abduction is limited such that motion is lost beyond 10 degrees. Id. A 30 percent rating is warranted if flexion is limited to 20 degrees, and a 40 percent rating is warranted when flexion is limited to 10 degrees. Arthritis of the knee is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, and 5260-61 (1999). A 10 percent rating is warranted if flexion is limited to 45 degrees, or if extension is limited to 10 degrees. See 38 C.F.R. § 4.71 (Plate II) (1999). A 10 percent rating is also warranted if there is X-ray evidence of arthritis and objective evidence of limited motion, even if the limited motion would be otherwise noncompensable. A 20 percent rating is warranted if flexion is limited to 30 degrees, or if extension is limited to 15 degrees. A 30 percent rating is warranted if flexion is limited to 15 degrees, or if extension is limited to 20 degrees. A 40 percent rating is warranted if extension is limited to 30 degrees, and a 50 percent rating is warranted when extension is limited to 45 degrees. If 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 (1999). In assessing a claim for an increased rating, the history of the disability should be considered. 38 C.F.R. § 4.1 (1999); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA regulations define disability of the musculoskeletal system primarily as "the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance." 38 C.F.R. § 4.40 (1999). To that end, section 4.40 provides that: The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. With regard to disorders of the joints, applicable regulations provide that "the factors of disability reside in reductions of their normal excursion of movements in different planes." 38 C.F.R. § 4.45 (1999). To that end, the regulations provide that, when rating disabilities of the joints, inquiry will be directed to considerations such as: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Id. The regulations further provide that instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also to be considered. Id. § 4.45(f). See 38 C.F.R. § 4.59 (1999) ("[t]he intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability"). The difficulty in rating functional loss due to factors such as pain on use was recognized by the United States of Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) in the case of DeLuca v. Brown, 8 Vet. App. 202 (1995). There, the Court noted that the VA examination relied upon to rate the veteran's disability had merely included findings as to the range of motion at the time of the examination, without accounting for factors enumerated in Section 4.40. The Court cited the case of Bierman v. Brown, 6 Vet. App. 125, 129 (1994), in which 38 C.F.R. § 4.10 was quoted for the proposition that a rating examination must include a "full description of the effects of disability upon the person's ordinary activity." DeLuca, 8 Vet. App. at 206 (emphasis added). In order to effectuate that requirement, the Court explained that, when the pertinent diagnostic criteria provide for a rating a disability on the basis of loss of range of motion, determinations regarding functional loss "should, if feasible, be 'portray[ed]' (§ 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. In the present case, the record shows that the veteran sustained a superficial gunshot wound to the medial surface of his right knee during service in November 1950. He also sustained compound comminuted fractures of the midshafts of the left tibia and fibula in March 1951. As a result of the latter injury, he developed chronic osteomyelitis of the left tibia. A bone graft was performed on the tibia in February 1953, using material from the left ilium, and he was discharged from service in September 1954. When the veteran was examined for VA purposes in December 1954, it was noted that there was a 11/4-inch shortening of his left leg and that he walked with a limp. Range of motion in the knees was found to be normal. By a decision entered in January 1955, the RO granted service connection for compound comminuted fractures of the left tibia and fibula, with 11/4-inch shortening of the left leg and limitation of motion in the left ankle. Service connection was also granted for inactive chronic osteomyelitis of the left tibia, a superficial gunshot wound of the right knee, and scars on the right flank and at the base of the right second toe. In July 1956, the veteran was admitted to a VA facility with complaints of pain and swelling in the left lower extremity. Examination revealed moderate swelling of the left leg from the knee to the ankle. The anteromedial aspect of the lower two-thirds of the left leg was boggy, edematous, and tender, but not fluctuant. In August 1956, on the date of his hospital discharge, an examination was noted to be remarkable only for slight local warmth and swelling in the left leg. VA treatment records, dated in March and April 1966, show that there was crepitation of the left knee. X-rays revealed good alignment of the left knee and ankle. When the veteran underwent VA orthopedic examination in July 1977, he complained of increasing pain in his left knee, among other things. Examination revealed that he had a full range of motion in the knee, and good stability. X-rays were interpreted to reveal "a moderate degenerative change about the knee." A July 1977 letter from a private physician, S. D. Gardner, M.D., shows that the veteran was taking medication for chronic leg and back pain. An August 1977 letter from another physician, Louis P. Ripley, M.D., indicates that the veteran was having continuing problems with pain and limitation of motion in the left ankle. In August 1977, the veteran underwent fusion of the left ankle at a VA facility. When he was later examined for VA purposes in September 1977, he complained of severe pain in his ankle, knee, and tailbone, and said that he had difficulty walking and sitting. In October 1977, he was admitted to a VA facility for a cast change related to the ankle fusion. In October 1977, the RO granted service connection for arthritis of the lumbosacral spine, with lumbosacral strain, secondary to service-connected compound comminuted fractures of the left tibia and fibula, 11/4-inch shortening of the left leg, and fusion in the left ankle. In a November 1977 letter, a VA physician opined that "[the veteran] definitely should be service-connected for resultant arthritis of his left knee and ankle . . . ." When the veteran was examined for VA purposes in December 1977, he complained of constant pain and stiffness in the left knee, among other things. Examination revealed general swelling and redness in the left lower extremity, particularly the lower half. There was a mild increase in the circumference of the left knee, and range of motion on flexion was 100 degrees. It was noted that there was a shortening of the left leg of at least 11/2 inches, and that the veteran walked with the aid of a cane. The pertinent diagnostic assessment was that he had arthritis of the left knee. VA treatment records, dated from December 1977 to February 1978, show that he complained of tenderness over the proximal shin. In August 1978, VA examination revealed no bony swelling of the knees, and range of motion on flexion to 90 degrees, with complaints of pain, bilaterally. There were no organic changes or circulatory disturbances in the left lower extremity. X-rays revealed that the bones of the left knee appeared slightly osteoporotic, and that there were changes in the left hip consistent with either traumatic or hypertrophic arthritis. By a decision entered in September 1978, the RO granted service connection for arthritis of the left hip, with osteoporosis of the left knee, secondary to service-connected compound comminuted fractures of the left tibia and fibula, 11/4-inch shortening of the left leg, and fusion in the left ankle. In August 1985, the veteran was hospitalized at a VA facility for treatment of cellulitis of the left lower extremity. Examination revealed obvious swelling and resonance of the left lower extremity, which subsequently disappeared. When the veteran was examined for VA purposes in June 1993, he complained of intermittent hip pain three to four times per week, with walking. He also reported very painful aching in the left knee, particularly with prolonged walking or sitting. Examination revealed a full range of motion in the hips, with no tenderness, crepitus, or abnormalities. The range of motion in the left knee was from zero to 130 degrees, with no instability. There was 2+ crepitus in the knee, but no evidence of effusions or tenderness. The final diagnoses included degenerative arthritis of the left knee and hip. A treatment note from a VA rheumatologist, dated in October 1995, reflects that there was evidence of osteoarthritis affecting the veteran's knees, both on examination and X-ray, and that he had discomfort in his knees with range of motion. It was noted that the veteran suffered from generalized osteoarthritis, and that he continued to have increasing symptomatology and decreasing function as a result. In February 1996, it was noted that ambulation over 50 feet was very painful for the veteran, and almost impossible, due to problems with service-connected traumatic arthritis. Due to the severity of his condition, an electric cart was prescribed. When the veteran was examined for VA purposes in August 1996, he complained of constant pain in his left knee, and said that the pain became worse if he was on his feet for any time at all. He also reported that he had aching across his entire low back and across his hips on both sides. He said that he could not walk more than half a block without having problems. Examination revealed flexion in the left hip to 110 degrees, and abduction to 25 degrees. It was noted that he used a brace and cane to get around. The examiner stated, "This man obviously has extremely severe disability as far as both in his back, his left leg, including the knee and ankle and he also has disabilities related to the entire both lower extremities." In November 1996, the veteran presented for VA treatment with complaints of low back pain and a sensation of weakness in his legs. In December 1996, it was noted that back pain prevented ambulation beyond one block. When the veteran was examined for VA purposes in January 1997, it was noted that he limped on his left leg, that he used a cane in his right hand, and that he sometimes used an electric cart to get around. Examination of the left knee revealed no swelling or deformity. There was tenderness of the knee anteriorly, and severe crepitus. The veteran extended the knee to 10 degrees, and flexed the knee to 130 degrees, with pain posteriorly. Circumference of the left thigh was 43 centimeters, as compared to 471/2 centimeters on the right, and the examiner noted that the left leg was weaker. A VA treatment record, dated in February 1997, reflects that the veteran was having problems with low back pain and bilateral radicular leg pain. When the veteran was examined for VA purposes in June 1998, he reported a history of constant left knee pain, and said that he had problems standing for any length of time. He complained of aching across the entire low back and hip area, and stated that his back and legs "gave out" with severe pain. He also reported that he could not walk more than one- half block before having a problem with pain. He said that his left knee and hip ached all the time, that they were weak, that they were stiff at times, and that he had flare- ups of pain on walking, sitting, and with any kind of exertion. He indicated that he had swelling of the left knee from time to time, as well as instability, locking, and lack of endurance, and also reported fatigability of the left hip. He denied symptoms of heat and redness, and any episodes of dislocation and recurrent subluxation. It was noted that he used an electric cart most all the time for ambulation, that he also used a cane, and that he wore corrective shoes and a left leg brace. On examination, it was noted that the veteran had a bad limp on the left, and that he could not walk on the heels, toes, or outside of his feet because he lost his balance easily. There was deformity, swelling, and tenderness of the left knee, medially, anteriorly, and laterally. There was no laxity or muscle spasm, but there was tenderness posteriorly, and crepitus. He had an active range of motion in the knee from six to 118 degrees with pain, a passive range of motion from four to 120 degrees with pain, and a range of motion from four to 122 degrees with pain after fatiguing. As to the left hip, that joint was noted to be tender laterally. However, there was no swelling and no muscle spasm. On active range of motion, he had flexion in the hip from zero to 125 degrees with pain, extension from zero to 28 degrees with pain, adduction from zero to 15 degrees with pain, abduction from zero to 23 degrees with pain, external rotation from zero to 60 degrees with pain, and internal rotation from zero to 15 degrees with pain. On passive range of motion, he had flexion from zero to 130 degrees with pain, extension from zero to 30 degrees with pain, adduction from zero to 15 degrees with pain, abduction from zero to 25 degrees with pain, external rotation from zero to 65 degrees with pain, and internal rotation from zero to 15 degrees with pain. After fatiguing, he had flexion from zero to 130 degrees with pain, extension from zero to 35 degrees with pain, adduction from zero to 20 degrees with pain, abduction from zero to 28 degrees with pain, external rotation from zero to 67 degrees with pain, and internal rotation from zero to 20 degrees with pain. X-rays revealed mild degenerative changes of the left knee, with a mild osteopenia. X-rays also revealed a deformity of the iliac wing, suggesting old trauma or a bone harvest, and mild hypertrophic bone formation about the left hip. As to the factors outlined in 38 C.F.R. §§ 4.40, 4.45, and 4.59 (pertaining to weakness, excess fatigability, incoordination, and pain on use or during flare-ups), the examiner noted that the veteran's left leg was weaker than the right, though both extremities were weak, and that he experienced incoordination due to weakness, loss of muscle (atrophy), and shortening of the left extremity. The examiner also indicated that pain due to repeated use or flare-ups was "certainly a factor." The examiner reported that the veteran had pain just sitting in his electric cart, and that the pain increased if he tried to move his extremity. The examiner also indicated that veteran had pain with any movement of the left hip or knee, and that he had decreased motion in the hip with regard to extension, adduction, abduction, and internal rotation, most of which was probably due to pain. As to the quantification of the functional loss due to pain, the examiner stated, "[T]hat would be pure speculation . . . ." The examiner concluded, "This veteran has had very severe injuries to the left extremity causing marked difficulties particularly in ambulation." Based on a review of the foregoing, the Board finds that the evidence supports the assignment of 40 and 50 percent ratings, respectively, for degenerative joint disease of the left hip and knee. Although the veteran has movement in his left hip and knee, it appears from the record that any movement of those joints produces pain. It also appears from the record that those joints are affected with weakness and decreased endurance, and that active, repeated use of the joints is very difficult or impossible. Indeed, it appears that the veteran has aching and discomfort in his left hip and knee even at rest. Thus, while the June 1998 VA report does not contain a quantification of these functional limitations in terms of additional loss in range of motion as contemplated by the Court in DeLuca, the Board is persuaded that the combined effect of these factors is to render the veteran seriously disabled with regard to the joints in question. Consequently, the Board hereby grants the veteran ratings which correspond to the maximum schedular evaluations for limitation of motion of the affected joints, under 38 C.F.R. § 4.71a, Diagnostic Codes 5252 and 5261. ORDER A 40 percent rating is granted for degenerative joint disease of the left hip, subject to the law and regulations governing the award of monetary benefits, including those relating to the combining of multiple ratings. A 50 percent rating is granted for degenerative joint disease of the left knee, subject to the law and regulations governing the award of monetary benefits, including those relating to the combining of multiple ratings. MARK F. HALSEY Member, Board of Veterans' Appeals