Citation Nr: 0007142 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 98-05 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to increased evaluations for a right knee disability, rated 10 percent disabling effective from June 1997 and 20 percent disabling effective from April 1998. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from March 1946 to October 1947. By rating action dated in October 1997 the Department of Veterans Affairs (VA) Regional Office Louisville, Kentucky denied entitlement to service connection for a left knee disability and confirmed and continued a noncompensable evaluation for a right knee disability. The veteran appealed from those decisions. In a May 1998 rating action the evaluation for the right knee condition was increased to 10 percent effective from June 5, 1997 which was the date of the veteran's claim for an increased rating for the knee condition and to 20 percent effective April 24, 1998. In November 1998 the veteran testified at a hearing before a member of the Board of Veterans' Appeals (Board) sitting at the regional office. The case is now before the Board for appellate consideration. During the November 1998 Board hearing, the veteran indicated that he intended to file claims for service connection for a stomach condition secondary to the medication taken for his right knee condition and also for fibromyalgia at a later date, when he obtained necessary supporting medical evidence. The current record does not indicate that these potential claims have been filed and no further action by the RO is currently indicated. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office. 2. A left knee disability was not demonstrated during the veteran's period of active military service. 3. Arthritis of the left knee was reported by a private physician in December 1947; however, the presence of arthritis or other left knee disability was not confirmed on a subsequent VA examination and period of VA hospitalization. 4. A disability of the left knee was recently reported by a private physician and has not been shown to be of service origin. 5. As of June 1997 there was a full range of motion of the veteran's right knee. An X-ray study of the knee was negative. 6. As of April 1998, there was marked tenderness to palpation about the knee and loud crepitation with motion of the knee. Range of motion of the knee was from 0 degrees to 130 degrees. There was no lateral instability of the knee and no swelling. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in or aggravated during the veteran's period of active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991). 2. Evaluations in excess of 10 percent effective in June 1997 and in excess of 20 percent effective in April 1998 for the veteran's right knee disability are not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 5257 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that it has found the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that he has presented claims which are plausible. The Board is also satisfied that all relevant facts regarding the claims have been properly developed. I. The Claim for Service Connection for a Left Knee Disability. The veteran's service medical records reflect that he was seen in March 1947 after falling and injuring his right knee some six months previously. It was indicated that since that time he had had a chronic ache in the knee. Various findings regarding the right knee were made on physical examination. X-ray studies showed typical Osgood-Schlatter's disease involving the right knee. He was seen on several subsequent occasions in service with complaints of right knee pain. There was no reference on any of the visits to a left knee problem. When the veteran was examined for separation from service in September 1947 it was indicated that he had sustained a right knee injury in 1946. There was no reference to a left knee condition or injury. The veteran's initial claim for VA disability benefits was submitted in November 1947. He referred to an injury to the right knee in May 1946. In a December 1947 statement Dr. Carlow B. Combs indicated that he had examined the veteran and found him to be in poor health. The diagnosis was arthritis and deformity of both knees due to an injury incurred during basic training in the U.S. Army. These symptoms included constant pain in the knees, insomnia and anorexia. The veteran was afforded a VA examination in March 1948. He reported that while going through an obstacle course in service he had fallen and struck his knees. He reported that walking and standing too much caused pain and he could not sleep at night due to the pain. It seemed as if the pain went right up both legs to his thighs. He reported that his knees would swell and become red and hot. On examination the lower extremities appeared normal and by measurement were the same size at opposite levels. The veteran walked without a limp and performed the usual squatting and bending exercises normally. His knees were stable and there was no limitation of motion of any joint. There was no swelling, crepitus, atrophy or motor or sensory changes noted in the lower extremities. The patellae were freely moveable and no relaxation of ligaments of the knees was present. The veteran wore an elastic bandage on the right knee but no indication for its use was found. An X-ray study of the left knee was negative. X-ray study of the right knee showed a failure of fusion of part of the tibial tubercle that could either be a developmental abnormality or the result of an old injury. The diagnosis was nonfusion, part of the tibial tubercle on the right. By rating action dated in March 1948, service connection was granted for a right knee condition, rated noncompensable. The veteran was hospitalized at a VA medical facility during May and June 1948 with an admission diagnosis of arthritis. He gave a history on admission of having fallen while running the obstacle course in basic training in 1946 and injuring both knees. He received outpatient treatment at a field hospital for three months. He continued to have painful knee joints during the remainder of his time in service. Since that time he had also developed painful ankles and shoulders with some stiffness. He stated that his knees had been red, tender and swollen on occasion. Physical examination showed slight protuberance of the right anterior tibial tuberosity with some tenderness. All other joints were grossly normal. X-ray study of the right knee showed a separation of the anterior tibial tuberosity. X-ray study of the left knee was normal. Sedimentation rate was normal. At the conclusion of the hospitalization it was determined that a diagnosis of arthritis could not be made. The final diagnoses included arthralgia of undetermined cause and without organic basis, and nonunion of the anterior tibial tuberosity of the right knee. No treatment was indicated for the right knee and it was not considered to be any disability On June 5, 1997 the veteran submitted a claim for VA disability benefits. He referred to injuries to both knees in 1947. In a September 1997 statement Robert E. Cornett, M.D., indicated that the veteran had been in the U.S. Army in 1946 and 1947 and had suffered trauma to both knees on two occasions during service; spending time in the hospital for treatment of the injuries. In his opinion the veteran had some type of internal derangement of both knees which were complications of 1946-1947 injuries in service. He stated that there was constant arthralgia, instability, stiffness and swelling of both knees. VA outpatient records reflect that the veteran was observed and treated for various conditions during 1997. On July 2, 1997 X-ray studies of both knees were normal. When he was seen on September 24, 1997, he complained of bilateral knee pain, but there was a full range of motion and strength of both knees. Sensation was intact. The veteran was afforded a VA orthopedic examination in April 1998. The veteran stated that he injured both knees in a fall on a training mission in service. He stated that the right knee was worse and the only one for which he received actual treatment. Near the end of his tour of duty he was involved in an accident in which a jeep flipped over and he injured both knees. He stated that he was not on duty at the time of the accident but had checked out the jeep for a fishing trip. Following his discharge from service, he returned home and sought care for knee pain. He had had continuous pain since that time, especially in the right knee. The veteran reported giving way and locking of the right knee. He found it necessary to hold on to things because of weakness in that leg secondary to the knee pain. For the past year the symptoms had been progressive and he had been unable to sleep because of knee pain. He stated that he had episodes of swelling and redness in the knee. He was unable to kneel, bend or squat. He had worked as a maintenance supervisor for school buses but had retired early about eight years previously because of knee pain. He was able to ambulate slowly; however, each step was painful. Examination of the right knee showed no current swelling. There was marked tenderness to palpation directly over the tibial tubercle. There was loud crepitus with motion. Range of motion was from 0 degrees to 130 degrees. There was no lateral instability. Recent X-rays of the right knee showed degenerative changes as well as a density over the tubercle. Diagnoses were made of history of right knee injury, partial nonfusion of the right tibial tubercle, degenerative arthritis of the right knee and chronic pain syndrome of the right knee. There were no findings regarding the left knee. During the course of the November 1998 Board hearing, the veteran indicated that he had injured both knees in a fall in service. He related that he could not recall the details of this incident. Immediately prior to discharge he had wrecked a jeep and injured his knees. He was put under house arrest and did not get any medical attention. He had gone to see a Dr. Combs after service but all he could do for him was to advise him to take some aspirins and hot baths. He had not seen Dr. Combs after that time. The veteran further related that he had again been treated for his knees at a VA hospital from May to June 1948. After that he had gone to private physicians who told him that aspirin was the best medication he could take for arthritis and he would sometimes be told to take hot baths. The private physicians were all deceased and he could not obtain any of the medical records. His current treatment consisted of doses of painkillers. He had soreness, tenderness and pain involving his left knee. On occasion, both knees would be swollen. The symptoms involving his right knee were more severe than those involving the left knee. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. The veteran's service medical records reflect that he sustained an injury to the right knee while undergoing an obstacle course in basic training. He thereafter received treatment for his right knee on several occasions. However, his service medical records, including the report of his physical examination for separation from service reflect no reference to a left knee injury or disability. A report by a private physician, Dr. Combs, in December 1947 reflected a diagnosis of arthritis and deformity of both knees which was related to an injury in basic training. However, Dr. Combs did not mention any subsequent jeep accident. Dr. Combs further described symptoms of neurosthenia and recommended VA treatment for that condition. Furthermore, the diagnosis pertaining to the left knee was not confirmed on the subsequent VA examination in March 1948 or during the period of VA hospitalization from May to June 1948. X-ray studies of the left knee on those occasions did not reflect the presence of arthritis or other disability. Physical examination of the left knee also did not disclose any disability involving that knee. In connection with his recent claim for service connection for a left knee disability, the veteran has submitted a September 1997 statement by a private physician indicating that the veteran had sustained trauma to both knees during service and expressing the opinion that the veteran had some type of internal derangement of the knees that was a complication of the injury sustained in service. However, the doctor's statement was obviously based on the medical history provided by the veteran. The Board is not required to accept doctors' opinions that are based on the veteran's recitation of medical history. Godfrey v. Brown, 8 Vet. App. 113 (1995). The diagnoses can be no better than the facts alleged by the veteran. Swann v. Brown, 5 Vet. App. 229 (1993). Accordingly, the Board does not attach any significant evidentiary weight to the September 1997 statement and opinion by the private physician. During the course of the November 1998 Board hearing, the veteran again related that he had injured both knees in an accident during service; however, he could not provide any details of the manner in which the incident occurred. He reported that he had again injured both knees in a jeep accident shortly before his discharge from service. However, as noted previously, his service medical records do not reflect any reference to the second accident or any injury or other disability involving his left knee. After carefully reviewing the entire record in this case, the Board concludes that the evidence is inadequate to establish that the veteran currently has a left knee disability that had its onset during his period of active military service. Accordingly, under the circumstances, it follows that entitlement to service connection for a left knee disability is not in order. 38 U.S.C.A. §§ 1110, 1131. II. The Claims for an Evaluation in Excess of 10 Percent for a Right Knee Disability Effective from June 1997 and in Excess of 20 Percent Effective from April 1998. As indicated previously, the veteran's service medical records do reflect that he was observed and treated following an injury to his right knee in basic training. When he was examined by the VA in March 1948 the knee was stable and there was no limitation of motion. The patellae were freely moveable and there was no relaxation of ligaments. An X-ray study of the right knee showed a failure of fusion of part of the tibial tubercle. When the veteran was hospitalized by the VA during May and June 1948 there was slight protuberance of the right anterior tibial tubercle with some tenderness. An X-ray study of the right knee showed what seemed to be a separation of the tibial tuberosity. The VA outpatient treatment records in 1997 show that when he was seen on July 2nd, X-ray studies of the knees were normal. When he was seen in September 1997 there was a full range of motion of the knees. When the veteran was examined by the VA in April 1998 the veteran reported continuous pain especially in the right knee since service. He also reported giving way and locking of the right knee. For the previous year his symptoms had been progressive and he had been unable to sleep because of knee pain. He stated that he had episodes of swelling and redness in the right knee. He reported that he was unable to kneel, bend or squat. Examination of the right knee showed no current swelling. There was marked tenderness to palpation directly over the tibial tubercle. There was a loud crepitus with range of motion. Range of motion of the knee was from 0 degrees to 130 degrees. There was no lateral instability. The diagnoses were history of right knee injury, history of partial nonfusion of the right tibial tubercle, degenerative arthritis of the right knee and chronic pain syndrome of the right knee. During the course of the November 1998 Board hearing, the veteran related that on occasion both of his knees would be swollen. The pain in his right knee was more severe than the left knee and affected his sleep. He was unable to sleep due to pain. There was instability and on occasion his right knee would swell. The knee also felt hot and on occasion the knee would pop. Motion of his knee was limited especially when it was swollen. He felt like the knee wobbled around all the time. Slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment. A 30 percent evaluation requires severe impairment. 38 C.F.R. Part 4, Code 5257. As of June 1997 the veteran had a full range of motion of his right knee and an X-ray study of the knee was negative. The evidence of record does not indicate that the right knee condition was productive of more than slight disability at that time. Thus, an evaluation in excess of 10 percent for the right knee disability would not be warranted effective from June 1997. The record further discloses that when the veteran was examined by the VA in April 1998 there was marked tenderness to palpation about the knee and loud crepitus with motion of the knee. However, range of motion of the knee was nearly complete; there was no lateral instability and no swelling of the knee. The findings regarding the veteran's right knee as of April 1998 do not indicate that the knee was productive of more than moderate disability at that time. Accordingly, an evaluation in excess of 20 percent for the right knee condition would not be warranted effective as of April 1998. The Board notes that in the case of DeLuca v. Brown, 8 Vet. App. 202 (1995) the United States Court of Appeals for Veterans Claims held that consideration must be given to functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 when evaluating orthopedic disabilities. The VA examinations have disclosed some pain involving the veteran's right knee, a slight functional impairment, and the pain involving the right knee has been considered by the Board in evaluating the degree of severity of the veteran's right knee disability. However, the VA examinations have not disclosed any indication of functional loss due to weakness, fatigability or incoordination. Thus, for the reasons already discussed, the Board is unable to conclude that an evaluation in excess of 10 percent is warranted for the right knee condition effective from June 1997 and an evaluation in excess of 20 percent effective from April 1998. The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue regarding either of the matters on appeal. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for a left knee disability is not established. Entitlement to evaluations in excess of 10 percent for a right knee disability effective from June 1997 and in excess of 20 percent effective from April 1998 are not warranted. The appeal is denied. ROBERT D. PHILIPP Member, Board of Veterans' Appeals