Citation Nr: 0007684 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 96-42 024A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a disability rating greater than 30 percent for residuals of a gunshot wound to the right thigh with a fractured femur and injury to Muscle Group XIV. 2. Entitlement to a disability rating greater than 30 percent for instability, internal derangement, and chondromalacia of the right knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from August 1949 to July 1952, and from July 1952 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 1996 and August 1996 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. During the February 2000 hearing, the veteran raised the issue of entitlement to service connection for a back disorder secondary to the service-connected right leg disabilities. The matter has not been previously raised or developed and is therefore referred to the RO for the appropriate action. The issue of entitlement to an increased disability rating for residuals of a gunshot wound to the right thigh is addressed in the REMAND section of the decision, below. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The veteran's right knee disability is manifested by subjective complaints of knee pain, swelling, crepitation, and giving way. Objectively, there is evidence of minimal limitation of motion, some instability, some joint tenderness, and some crepitation. There is no objective evidence of swelling or deformity. X-rays do not show arthritis. CONCLUSION OF LAW The criteria for a disability rating greater than 30 percent for instability, internal derangement, and chondromalacia of the right knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.20, 4.21, 4.71a, Diagnostic Code 5257 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Where a disability has already been service connected and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well grounded claim. See 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 claim for an increased rating is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Factual Background In a January 1956 rating decision, the RO originally awarded service connection for a right thigh wound with a fractured right femur and injury to Muscle Group XV. In a May 1980 rating decision, the RO awarded service connection for instability and internal derangement of the right knee as secondary to the right thigh disability. It assigned a 10 percent rating. In a May 1981 rating action, the RO increased the right knee disability evaluation to 30 percent. This disability rating was confirmed by a February 1983 Board decision. In February 1996, the veteran submitted a claim for an increased disability evaluation. In connection with that claim, he underwent a VA orthopedic examination in April 1996. He reported pain in the right thigh down to the knee. The examiner commented that the veteran was able to walk normally and without pain or soreness in the right knee. There was no swelling, tenderness, or instability. Right knee motion was from 0 to 125 degrees with normal motion. The diagnosis included history of internal derangement and chondromalacia of the right knee. X-rays of the right knee showed no significant bone or joint abnormality. The veteran was afforded another VA orthopedic examination in July 1996. He complained of increasing bouts of soreness, aching, pain, and tenderness in the right knee. He had occasional swelling, giving way, and crepitation. He wore a knee brace. In addition, the veteran had a limp, which limited his ability to stand, walk, and climb. For example, he could walk for about a block only and could stand for limited periods of time. He was not using a cane at the time of the examination. The examiner commented that the veteran walked with an antalgic gait on the right side. There was medial joint line pain, some anterior knee pain, and some pain and crepitation with motion. There was no swelling. Right knee motion was from 0 to 130 degrees. The right knee also showed some instability and some anterior/posterior looseness. The diagnosis was residual injury of the right knee with internal derangement and instability. X-rays were again negative. The veteran testified at a personal hearing in August 1996. The right knee hurt and was loose. He could walk about a block before he stopped due to pain. He limped badly when the leg was tired. When he walked, he tightened the leg muscles to keep the knee from giving way. The veteran kept as much weight as possible off the knee when negotiating stairs. He had to lift himself out of a chair with his arms. He had occasional right knee swelling. The veteran had worn a knee brace for many years. He occasionally used a cane. During the last examination, the examiner told him there was a lot of popping in the knee and that he had arthritis. He had pain when straightening the knee. In January 1997, the veteran underwent another VA orthopedic examination. Right knee complaints included aching, pain, and tenderness, occasional mild crepitation, and some giving way sensation and some instability when tired or fatigued. He had problems with prolonged standing and could not climb, squat, or crawl. He wore a brace on the knee and at times used a cane. The examiner noted that the veteran had antalgic gait on the right. Right knee motion was from 0 to 135 degrees with some pain on motion. In addition, there was some anterior and medial joint line pain and slight looseness to anterior/posterior testing. There was no effusion or crepitation. The knee was stable to varus and valgus testing. McMurray test was negative. The diagnosis included residual injury to the right knee with internal derangement and instability. A letter dated in February 1998 from the Social Security Administration indicated that the veteran had been receiving retirement benefits since January 1995. However, he did not allege disability and no disability claim was pending. In February 2000, the veteran testified before a member of the Board. He still had knee pain. The knee brace kept the knee from slipping from side to side, though the knee did buckle if he was walking and overly tired. The veteran was retired, though he worked part-time. The standing and walking required kept him in almost constant pain. He still had problems walking and negotiating stairs. The knee had very recently buckled when he attempted some stairs. The veteran believed he had X-rays during the January 1997 VA examination. Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two evaluations are potentially applicable, 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. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The veteran's right knee disability is currently rated as 30 percent disabling under Code 5257, recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. A 30 percent rating is the maximum schedular evaluation available under Code 5257. The rating schedule contains diagnostic codes that provide for disability ratings greater than 30 percent for knee disabilities. However, none of the other diagnostic codes are factually applicable in this case. See 38 C.F.R. § 4.71a, Code 5256 (ankylosis of the knee); Code 5261 (limitation of leg extension); and Code 5262 (impairment of the tibia and fibula). Accordingly, the Board finds that the right knee disability is most appropriately rated under Code 5257. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). In addition, the Board finds no basis to increase the 30 percent maximum schedular rating. Specifically, application of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995) is not appropriate where, as here, the diagnostic code is not predicated on loss of range of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996) (specifically addressing a knee disability evaluated under Code 5257). Even if the Board were to consider functional loss, the objective evidence shows only minimal limitation of motion, some instability, some tenderness and crepitation, and no swelling or deformity. Such evidence is insufficient to establish entitlement to an evaluation for functional loss in addition to the 30 percent schedular rating. Similarly, the Board finds no reason for referral to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1). That is, there is no evidence of exceptional or unusual circumstances to suggest that the veteran is not adequately compensated by the regular rating schedule, such as marked interference with employment or frequent periods of hospitalization. Sanchez-Benitez v. West, No. 97-1948 (U.S. Vet. App. December 29, 1999); VAOPGCPREC 36-97. Finally, during the August 1996 hearing, the veteran testified that a VA examiner told him he had arthritis in the knee. The Board acknowledges that a veteran who has arthritis and instability of the knee may be rated separately under Codes 5003 and 5257. VAOPGCPREC 23-97. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (veteran is entitled to separate disability ratings for different manifestations of the same disability when the symptomatology of one manifestation is not duplicative or overlapping of the symptomatology of the other manifestations). However, despite what the examiner might have said, X-rays from April 1996 and July 1996 are negative for arthritis. Although the veteran testified that he believed he had another X-ray in during the January 1997, the examination report itself makes no reference to an X-ray report or a request for X-rays. Thus, there is no evidentiary basis for a separate rating. ORDER Entitlement to a disability rating greater than 30 percent for instability, internal derangement, and chondromalacia of the right knee is denied. REMAND The veteran seeks an increased disability rating for his service-connected right thigh disability based on alleged worsening of the symptoms. As indicated above, such a claim is well grounded. Caffrey, 6 Vet. App. at 381; Proscelle, 2 Vet. App at 632. Therefore, VA has a duty to assist the veteran in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464, 1469 (1997). This duty includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The veteran's right thigh disability is currently evaluated as 30 percent disabling under Diagnostic Code (Code) 5314, injury to Muscle Group XIV. 38 C.F.R. § 4.73. Muscle Group XIV functions in the extension of the knee, simultaneous flexion of the hip and flexion of the knee, as well as providing postural support for the body and synchronization of the hip and knee. A 30 percent rating is assigned when there is moderately severe disability to this Muscle Group. A maximum 40 percent schedular rating is warranted when there is severe disability. When there is disability of the musculoskeletal system, the determination of a disability rating must include consideration of functional loss due to factors such as pain on use, weakness, or tissue loss. 38 C.F.R. § 4.40. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c) (1999); 38 C.F.R. § 4.50 (1996). Severe muscle disability occurs when there was a through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Records should show hospitalization for a prolonged period for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective evidence of severe muscle disability includes ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. Additional signs of severe muscle disability, when present, include: X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile; and induration or atrophy of an entire muscle following simple piercing by a projectile. Id. A review of the VA examinations of record finds that the examination fails to adequately address the cardinal signs and symptoms of muscle injury and the specific findings associated with severe muscle injury. If an examination report does not contain sufficient detail, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. The Board is prohibited from relying on its own unsubstantiated medical judgment in the resolution of claims. See Crowe v. Brown, 7 Vet. App. 238 (1995); Austin v. Brown, 6 Vet. App. 547 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In addition, the Board notes that the January 1997 VA orthopedic examiner indicated there was pain and tenderness over the right thigh scars. A veteran is entitled to separate disability ratings for different manifestations of the same disability when the symptomatology of one manifestation is not duplicative or overlapping of the symptomatology of the other manifestations. Esteban, 6 Vet. App. at 262. On remand, the RO should consider whether a separate evaluation is warranted for scars on the right thigh. See Robinette, 8 Vet. App. at 76 (VA's duty to assist includes, where appropriate, identifying and adjudicating all claims reasonably raised by the record whether or not formally claimed in the VA application); accord Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Accordingly, the case is REMANDED to the RO for the following action: 1. The veteran should be afforded a VA orthopedic examination to determine the nature and extent of any disability related to the residuals of a gunshot wound to the right thigh, to include scarring. All indicated tests and studies should be performed as deemed necessary by the examiner. The claims folder must be made available to the examiner for review prior to the examination. The orthopedist is asked to identify and describe any current residuals of a gunshot wound to the right thigh with a fractured femur, with specific attention given to loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. The orthopedist should also discuss any functional loss associated with the disability due to pain on use, weakness, or tissue loss. If there is no evidence of any of the above factors on examination, the examination report should so state. Finally, the examiner should comment on any tenderness or pain shown in the associated right thigh scars. 2. After completing any necessary development in addition to that specified above, the RO should readjudicate the veteran's claim for a disability rating greater than 30 percent for residuals of a gunshot wound to the right thigh with a fractured femur and injury to Muscle Group XIV. In addition, the RO should consider the issue of entitlement to a separate disability rating for scars on the right thigh. If the disposition remains unfavorable to the veteran, the RO should furnish the veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for final appellate review, if in order. The Board intimates no opinion as to the ultimate outcome of the veteran's claim. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. RENÉE M. PELLETIER Member, Board of Veterans' Appeals