Citation Nr: 0003846 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 97-20 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased evaluation for the service- connected stress reaction of the left patella, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from September 1986 to August 1988. This appeal arose from a June 1996 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA), Regional Office (RO), which denied an increased evaluation for the service-connected stress reaction of the left patella. This decision was confirmed and continued by a rating action issued in November 1996. In November 1998, the Board of Veterans' Appeals (Board) remanded this issue to the RO for additional evidentiary development. A January 1999 supplemental statement of the case notified the veteran and his representative of the continued denial of his claim. The record does not show that the RO expressly considered referral of this case to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1995). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter "the Court"), has recently held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from considering whether referral to the appropriate first-line official is required. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Moreover, the Court has also held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only when circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,227 (1995). Having reviewed the record with these holdings in mind, the Board finds no basis for action on the question of the assignment of an extraschedular rating. FINDING OF FACT The veteran's service-connected stress reaction of the left patella is manifested by complaints of pain, with limited motion and no evidence of recurrent subluxation or lateral instability. CONCLUSION OF LAW The criteria for an increased evaluation for the service- connected stress reaction of the left patella have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, Codes 5003, 5019, 5257, 5260, 5261 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. It is also found that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of 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). VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 states that, in cases of functional impairment, evaluations are to based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon a person's ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. § 4.40. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In evaluating a service-connected disability involving a joint rated on limitation of motion, the Board must also consider functional loss due to weakness, fatigability, incoordination or pain on movement of joint under the provisions of 38 C.F.R. § 4.45 (1999). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (1999). The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The evidence of record indicated that the veteran was granted service connection for a left condition, diagnosed as a stress reaction of the left patella, by a rating action issued in January 1989. This disorder was assigned a 10 percent disability evaluation. VA outpatient treatment records developed between February 1995 and June 1996 included a record from July 11, 1995, which reflected that he was wearing a left knee brace. The Lachman's and pivot shift tests were negative. There was no indication of effusion. The knee was stable, both laterally and medially. The impression was polyarthritis without specific etiology. On September 5, 1995, range of motion was noted to be 0 to 120 degrees. The knee joint was stable, there was mild tenderness to palpation and the joint tracked well. An x-ray was negative. The assessment was anterior knee pain. The veteran also submitted employment records developed between April and November 1995. These noted an excessive use of sick leave. There were reprimands for failure to comply with the requirements of sick leave certification (employees were required to submit a medical statement within four days of return from sick leave). In May 1996, it was proposed to remove him as a psychiatric nursing assistant due to his failure to provide documentation for emergency leave. VA examined the veteran in January 1999. It was noted that he was working in a private hospital as a patient attendant. This position did not require any lifting, pushing, pulling or transferring of patients. He complained that his knee would give way, that it would swell and that it would be stiff in the morning. He stated that rest would make the knee better, but that it would always hurt. The physical examination noted that he was in no acute distress; he walked with a normal gait, except that the left knee lacked flexion due to wearing a brace. With the brace off, he walked with a normal gait. He refused to walk on his heels and toes because he said it would hurt. He also said that he could not squat. He was able to remove his shoes and socks without difficulty and he was able to sit on the examination table without difficulty. Active range of motion showed extension to 5 degrees and flexion to 40 degrees (he complained of pain from the low back into the leg). Passive extension was to 0 degrees and flexion was to 85 degrees. He was noted to sit with his knees slightly extended. The Lachman's and Drawer tests were negative. Medial and lateral stress tests were negative, but he complained of pain in the left knee; rotation also resulted in pain. Pre-patellar crepitation was present, but there was no swelling or effusion. There was no joint laxity. When he got off the examining table, he managed to walk on his toes for a few steps; while he had no apparent difficulty, he complained of pain. An x-ray of the knee was obtained, although he had refused to remove his knee brace. However, the available view showed slight narrowing of the medial joint compartment. The diagnosis was chronic left knee pain. The examiner stated that he could not comment on how flare-ups affected him because of his lack of effort due to his complaints of pain. Initially, we note that when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1999). The applicable rating criteria states that bursitis is to be rated as degenerative arthritis. 38 C.F.R. Part 4, 5019 (1999). Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. These 10 percent evaluations are combined, not added, under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. Part 4, 5003 (1999). Slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment. 38 C.F.R. Part 4, 5257 (1999). A 10 percent evaluation is warranted when flexion is limited to 45 degrees or when extension is limited to 10 degrees; a 20 percent evaluation is warranted when flexion is limited to 30 degrees or when extension is limited to 15 degrees. 38 C.F.R. Part 4, Codes 5260, 5261 (1999). After a careful review of the evidence of record it is found that an increased evaluation at this time is not justified. The evidence does not demonstrate moderate impairment of the knee. There is no evidence of recurrent subluxation or lateral instability. Rather, the objective examination noted that his knee joint was stable and lacked swelling and effusion. Flexion is not limited to 30 degrees and extension is not limited to 15 degrees. The examiner indicated that it was not possible to comment upon his condition during flare- ups because of the veteran's lack of effort due to his complaints of pain. However, should the veteran suffer such flare-ups, he should report for either private or VA treatment so that his condition during these periods can be documented. There was no evidence during the VA examination of functional loss due to weakness, fatigability, or incoordination. While the veteran complained of constant pain during the examination, the examiner noted that he was able to put on his shoes and socks without difficulty and was able to get on and off the examining table without any problems. Moreover, without the knee brace, his gait was noted to be normal. Therefore, it is found that the 10 percent evaluation currently assigned adequately compensates the veteran for his current degree of disability. In conclusion, it is found that the preponderance of the evidence is against the veteran's claim for an increased evaluation for the service-connected stress reaction of the patella. ORDER An increased evaluation for the service-connected stress reaction of the left patella is denied. C. P. RUSSELL Member, Board of Veterans' Appeals