Citation Nr: 0005534 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-14 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for residuals, fractures of multiple ribs, right side with resection of the fifth rib, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for residuals of a right knee injury, to include degenerative joint disease, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant, her mother and father ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from February 1991 to July 1991. She is a member of the Alabama Army National Guard and was on inactive duty training on April 22, 1995. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of June 1996 from the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). The Board, in April 1999, remanded the case to the RO so that additional development of the evidence could be accomplished. A hearing was held at the RO in August 1998. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The residuals of the fractures of multiple ribs, right side with resection of the fifth rib are manifested by intercostal neuralgia on the right side and right T4 to T6 dermatomal sensory loss. 3. The service-connected residuals of a right knee injury, to include arthritis, are productive of no more than slight impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residuals, fractures of multiple ribs, right side with resection of the fifth rib are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.124, 4.124a, Diagnostic Code 8211 (1999). 2. The criteria for a rating in excess of 10 percent for residuals of a right knee injury, to include arthritis, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran and her representative contend, in essence, that increased ratings for residuals of her service-connected rib injury and right knee disabilities are warranted. Concerning her service-connected rib injury residuals, the veteran asserts that at times pain will shoot up into her shoulder, and that the pain is exacerbated by lifting objects and by performing manual labor. She also contends that she experiences pain, weakness, stiffness, swelling, heat, locking, fatigability, and lack of endurance as a result of her right knee disability. Initially, the Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, she has presented claims that are plausible. A claim that a disorder has become more severe is well grounded where the disorder was previously service-connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity (which is within the competence of a lay party to report; see King v. Brown, 5 Vet. App. 19 (1993)) since the original rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Once it has been determined that a claim is well grounded, VA has the duty to assist the appellant in the development of evidence pertinent to that claim. In this regard, this case was previously before the Board in April 1999. At that time the case was remanded for additional development of the evidence. That development has been completed. In conjunction with the Remand, VA examinations were conducted in June and July 1999. The Board is satisfied that the statutory duty to assist the appellant in this case has been met. Disability ratings are based on schedular requirements, which reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155 (West 1991). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1999). In determining the level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2 (1999). Also, where 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). It is essential, both in the examination and evaluation of disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1 (1999). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (1999); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, governing VA regulations, set forth at 38 C.F.R. § 4.40 (1999) provide for consideration of a functional impairment when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. § 4.40 (1999). The Board notes that the Court has held that when a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999) must be considered, and examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca, Schafrath, supra. Residuals of a Rib Injury In June 1996 the RO granted service connection for a rib disability, classified as fracture residuals of the 5th and 6th ribs with resection of the 5th rib, and a 10 percent evaluation was assigned under Diagnostic Code 5297. The 10 percent rating assigned in June 1996 was increased by the RO in September 1998 to 20 percent pursuant to Diagnostic Codes 8299-8211. See 38 C.F.R. §§ 4.20, 4.27 (1999) (unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99"). The RO recharacterized the veteran's service-connected rib-related disability at that time as fracture residuals of the 5th and 6th ribs with resection of the 5th rib with residual numbness and intercostal neuralgia. This 20 percent rating has remained in effect since that rating action. Service connection is also in effect for The severity of a rib disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). See also 38 U.S.C.A. § 1155 (West 1991). Diagnostic Code 5297 provides that the removal of one rib, or the resection of two or more ribs without regeneration warrants a 10 percent evaluation. Note (1) provides that the rating for rib resection or removal is not to be applied with ratings for purulent pleurisy, lobectomy, pneumonectomy or injuries of pleural cavity. Note (2) provides an exception, setting out that rib resection will be considered as rib removal in thoracoplasty performed for collapse therapy or to accomplish obliteration of space and will be combined with the rating for lung collapse, or with the rating for lobectomy, pneumonectomy or the graduated ratings for pulmonary tuberculosis. Higher evaluations are warranted under Diagnostic Code 5297 where two or more ribs have been removed. Here, as the rating currently in effect is noted to be 20 percent, as well as since the medical evidence of record does not go to show that the veteran has either had 2 or more ribs removed, Diagnostic Code 5297 is not for application in the instant case. Under Diagnostic Code 8211, a 10 percent evaluation is in order where there is incomplete, moderate paralysis of the eleventh (spinal accessory, external branch) cranial nerve, a 20 percent evaluation is warranted when there is incomplete, severe paralysis of the eleventh (spinal accessory, external branch) cranial nerve, and a 30 percent evaluation is in order where there is complete paralysis of the eleventh (spinal accessory, external branch) cranial nerve. The level of disability is dependent upon loss of motor function of the sternomastoid and trapezius muscles. Diagnostic Code 8511 provides for the evaluation of injury to the middle radicular group, involving adduction, abduction, and rotation of the arm, flexion of the elbow, and extension of the wrist lost or severely affected. 38 C.F.R. § 4.124a. A 20 percent evaluation may be assigned for mild incomplete paralysis of the middle radicular nerve group of the minor upper extremity. A 30 percent evaluation requires moderate incomplete paralysis. A 40 percent evaluation requires severe incomplete paralysis. A 60 percent evaluation requires complete paralysis with adduction, abduction and rotation of the arm, flexion of the elbow, and extension of the wrist lost or severely affected. 38 C.F.R. Part 4, Code 8511. In addition, neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124 (1999). The term "incomplete paralysis," indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (1999). The service medical records reflect that the veteran, in April 1995 while in inactive duty training, was involved in an automobile accident, and, as a result, sustained multiple rib fractures with right hemothorax and left clavicular fracture. A veteran received follow up treatment at private and military facilities in 1995 and 1996 for intercostal neuralgia. The veteran was hospitalized at a military facility in November 1995 for displacement of the fifth rib due to trauma. While hospitalized she underwent a resection of a portion of the 5th rib and decortication. She was discharged in December 1995. A VA examination was conducted in February 1996. The clinical history showed that the veteran had a rib resected in November 1995. The veteran complained that she had chronic pain as a result of her rib injury residuals, and that she had difficult with strenuous activity and deep inspiration. The examination of the right chest showed two keloids. One was status post tube placement. The other was a 6 cm surgical scar from the rib resection. There was some tenderness on palpation over this area. Some mild depression was noted in the area of the ribs. The lungs were clear. X-rays were interpreted as showing resections of the portion of the 5th and 6th ribs; no other abnormality noted. The diagnoses included status post hemothorax with chest tube placement and most recent rib resection with some chronic costochondritis and post traumatic arthralgias and pleuritis in the right chest area. A private medical operative report dated in May 1996 shows a preoperative diagnosis of history of burning right chest pain/possible neuroma and intercostal neuralgia. The veteran was administered intercostal nerve block with infiltration. She tolerated the procedure well and was noted to be pain free at discharge. Another private medical record, dated in July 1996, indicates that the veteran complained of experiencing right upper quadrant pain and numbness in the area of the right breast. She also complained of increased pain with work activities such as lifting, overhead activity, walking, pushing, and pulling. An August 1996 private hospital procedure note indicates that the veteran had a history of intractable intercostal neuralgia, post traumatic. In an attempt at pain relief, it is noted that the veteran was administered a thoracic epidural myelogram. The post-procedure diagnosis was noted to be the same as the above-mentioned pre-procedure diagnosis. The report of a March 1997 VA neurologic examination shows that the veteran complained of throbbing pain which starts under her right breast and restricts her from taking deep breaths. She noted that this pain occurred every day with some relief from Neurontin and nerve blocks. The examination showed that the cranial nerves, II-XII, were intact. There was normal bulk and tone. Strength was 5/5 throughout. There was T5 and T6 sensory level decrease in pinprick. There was a sharp/dull differentiation which extended mainly under the breast. The diagnosis was possible neuropathy versus thoracic radiculopathy. Additional testing was recommended. The report of an April 1997 VA examination shows that the veteran complained of pain at the operative site since the surgery which was somewhat relieved by nerve blocks. She complained of shortness of breath, but not of cough or other pulmonary symptoms. The diagnoses were post-traumatic and postoperative status fractured ribs on the right with resection of the 5th rib and post-traumatic intercostal neuritis. VA electromyogram and nerve conduction studies in November 1997 showed no evidence of right thoracic radiculopathy. A VA examination report dated in November 1997 contains a diagnosis of post operative resection, right 4th or 5th rib, with healed fracture of the left clavicle without sequela; slight pain was noted in the area of the ribs. The veteran underwent a thoracic epidural steroid injection with an epidural myelogram in April and May 1998. The diagnosis was history of persistent intercostal neuropathy/radiculopathy. During her August 1998 hearing at the RO the veteran testified that she experienced constant pain, particularly with motion, as a result of her rib injury residuals. She noted the pain is located primarily in the area from the top of her chest to just below her breast, on the right side. The veteran also testified that her condition prevents her from being able to lift, push, or pull heavy boxes in her employment as a mail clerk. VA outpatient records dated in 1998 and 1999 show complaints of chest wall pain. Intercostal neuralgia was diagnosed on private medical examination in August 1998. During a May 1998 VA examination of the left shoulder the veteran reported that she worked as a mail clerk. A VA examination was conducted in July 1999. At that time she complained of pain on the right side at the T3-T6 distribution, which was exacerbated by lifting objects and by doing manual labor. She also noted that she had limited range of motion on extension and elevation of her arm, which is likely more secondary due to stretching her rib musculature than by weakness at the shoulder joint. She stated that intermittently she might have shooting pain into the fingers of the right hand. She also complained of intermittent right hand numbness. Neurologic examination showed cranial nerves II through XII to be intact. Motor examination showed 5/5 muscle strength throughout, with the right upper extremity examination limited secondary to pain. Sensory examination showed the veteran to be intact to touch, temperature, and vibration on all 4 extremities. In the area of the chest wall, a consistent loss of sensation between T4 and T5 on both the posterior and anterior aspects of the chest was noted. The examiner indicated that the sensory loss had not crossed the mid line and therefore was consistent with a dermatomal pattern. There was no sharp shooting pain that could be elicited by movement of the neck or upper extremities which would suggest a radicular type phenomenon. Cerebellar examination revealed intact rapid alternating movements and finger-nose-finger test. Gait was described as normal. Chest x-rays showed a deformity of the right chest wall most likely due to resection of the fifth rib. The diagnosis was right T4 to T6 dermatomal sensory loss, highly likely due to service-connected rib injuries. The veteran was noted to suffer from neuralgic type pain as well as occasional exacerbations due to musculoskeletal effects. The examiner indicated that it did not appear that any radicular type symptoms or evidence of weakness or atrophy in the right upper extremity to suggest a spinal cord problem. No evidence of carpal tunnel syndrome was shown on examination. It was added that the sensory loss in the dermatomal pattern would likely never resolve and that the veteran may have to continue taking neuropathic medications in order to treat her symptoms. The Board notes that February 1996 VA chest x-rays sjowed resection of the fifth and sixth rib. However, the medical evidence shows that only the fifth rib was resected. To summarize, the Board has reviewed the veteran's complaints in conjunction with the objective medical evidence of record. The record shows that the veteran continues to experience intercostal pain on the right side. The most recent VA examination confirmed sensory loss at T4 to T6 distribution. However, the remainder of the examination showed no significant abnormality. The evaluation did not confirm radicular involvement. No radicular type symptoms or evidence of weakness or atrophy in the upper extremity to suggest a spinal cord problem was shown. In addition, cranial nerves II through XII were intact, motor examination was normal and the veteran had 5/5 muscle strength throughout. Also the record does not demonstrate the presence of the loss of function of either the sternomastoid or trapezius. Furthermore, VA electromyogram and nerve conduction studies in November 1997 showed no evidence of right thoracic radiculopathy. Also, as noted above, neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis, which is 10 percent. 38 C.F.R. § 4.124 (1999). See also 4.124a (1999). In view of these findings, it is the Board's judgment that the current symptoms and findings relative to the veteran's service-connected rib injury residual disability do not satisfy the criteria for a rating in excess of 20 percent under the rating criteria. The Board is also satisfied that the current medical evidence adequately reflects the degree of functional impairment and 20 percent currently in effect contemplates any functional loss resulting from pain as contemplated in the DeLuca case. In rendering this decision, the Board has considered all pertinent aspects of 38 C.F.R. Parts 3 and 4 as required by the Court in Schafrath, supra. However, the pertinent sections do not provide a basis for a higher rating. Additionally, it is noted that the 20 percent disability evaluation currently assigned is the highest rating warranted during the appeal period. See Fenderson v. West, 12 Vet. App. 119 (1999). Right Knee Injury Residuals In June 1996 the RO granted service connection for a right knee disability, classified as status post partial meniscectomy and synovectomy, and a 10 percent evaluation was assigned under Diagnostic Code 5257. The 10 percent rating assigned in June 1996 has remained in effect since that rating action. The severity of a knee disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule, 38 C.F.R. Part 4 (1999). See also 38 U.S.C.A. § 1155 (West 1991). Diagnostic Code 5257 provides for the evaluation of other impairment of the knee, to include recurrent subluxation and bilateral instability. When slight, a rating of 10 percent is provided. When moderate, a rating of 20 is provided. When severe, a rating of 30 percent is provided. Diagnostic Code 5010 provides that traumatic arthritis will be rated under Diagnostic Code 5003 which provides for the evaluation of degenerative arthritis. 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. Diagnostic Code 5260 provides for an evaluation of limitation of flexion of the leg. When flexion is limited to 45 degrees, a rating of 10 percent is warranted. When flexion is limited to 30 degrees, a rating of 20 percent is provided. When flexion is limited to 15 degrees, a rating of 30 percent is assignable. Diagnostic Code 5261 provides for an evaluation based on limitation of extension of the leg. When extension is limited to 10 degrees, a rating of 10 percent is provided. When extension is limited to 15 degrees, a rating of 20 percent is provided. When extension is limited to 20 degrees, a 30 percent evaluation is warranted. The service medical records reflect that the veteran twisted her right knee while on duty in July 1994 and underwent arthroscopic surgery in November 1994, when meniscectomy and partial synovectomy procedures were performed. Additional records show that she was also seen in 1995 for complaints of right knee pain. A VA examination was conducted in February 1996. At that time the veteran complained that weather changes and some forms of strenuous impact exercises caused her difficulty. The examination showed some crepitus and full range of motion. Neither effusion nor warmth was noted. X-rays of the right knee showed no bony abnormality. The diagnosis was history of internal derangement of the right knee about 1 1/2 years ago, arthroscopic surgery, and mild symptomatology. A VA outpatient record shows that the veteran was seen for complaints of right knee pain in January 1997. A VA treatment record dated in May 1997 also indicates that the veteran complained of right knee pain. Crepitus was shown, and chronic knee pain was diagnosed. A VA outpatient record, also dated in May 1997, shows that the veteran was seen for right knee complaints. Tenderness was shown to be present at the anterior medial joint line and range of motion was described as full. Ligaments were described as stable. Medication was prescribed for pain and mild degenerative joint disease of the knees was diagnosed. A VA orthopedic examination was conducted in November 1997. The veteran complained of pain, weakness, stiffness, swelling, heat, redness, instability, locking, fatigability, and lack of endurance. She stated that she wore an elastic brace at all time on the right knee. Range of motion testing showed flexion of the right knee to 102 degrees, and extension to 0 degrees. Stability was described as good. X- rays of the right knee showed slight narrowing of the joint space at the medical compartment. Degenerative joint disease was diagnosed. In the July 1998 substantive appeal, the veteran asserted that she suffered from right knee subluxation and instability. During her August 1998 hearing at the RO the veteran testified that her right knee swelled approximately 2 to 3 times a week, and that she also experienced intermittent pain when she walked a lot or ran. She added that she was unable to do much squatting or kneeling. A VA orthopedic examination was conducted in June 1999. At that time, the veteran she complained of pain, weakness, stiffness, swelling, heat, locking, fatigability, and lack of endurance. She denied redness, instability, and giving way. It was noted that flare-ups were shown to occur with overuse, and were alleviated by rest. She indicated that she sometimes wore a brace. She stated that she worked as a mail clerk at a private business. She indicated that her right knee interfered with walking. The examination showed slight evidence of painful motion. No evidence of edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, or guarding of movement was noted by the examiner. Gait was described as fair. Motion was noted to stop when pain began. Range of motion testing showed flexion of the right knee to 100 degrees, and extension to 0 degrees. X-rays of the right knee showed minimal degenerative changes. The diagnosis was arthralgia of both knees with no loss of function due to pain. The examiner added that the right knee did exhibit slight weakened movement and excess fatigability or incoordination as a result of the service-connected disability. It was noted that the examiner could not express this in terms of degrees. Ankylosis was not shown. The examiner added that pain played practically no significant functional limit on the veteran, as she did not take pain medication. It was further noted that the veteran would have a flare-up if the knee was used repeatedly over a period of time, and that there could also be instability as well. To summarize, the Board has reviewed the veteran's complaints in conjunction with the objective medical evidence of record. The record shows that the veteran's right knee disorder has required intermittent treatment since the time of the original July 1994 injury. The most recent VA examination confirmed that the veteran was still experiencing right knee pain, to include slight pain on range of motion testing. It was also noted that the right knee did exhibit weakened movement and excess fatigability or incoordination. However, the degree was classified as slight. Additionally, there was no evidence of edema, effusion, instability, tenderness, redness, heat, abnormal movement, or guarding of movement. Although flexion was to 100 degrees (normal is 140 degrees) there was no impairment in extension. X-rays showed arthritis. However, it was classified as minimal. The examiner indicated that there would be a flare-up and there could be instability if the knee was used repeatedly over a period of time. The veteran indicated that the flare-ups occurred with over use. However, the Board finds important the examiner's opinion that pain played practically no significant functional limit on the veteran. After reviewing the evidence it is the Board's judgment that the degree of disability resulting from the right knee disability does not result in moderate impairment under Diagnostic Code 5257. Accordingly, a rating in excess of 10 percent is not warranted. In addition, while X-ray examination shows the presence of right knee arthritis, a separate compensable rating is not warranted at this time for the arthritis because the degree of limitation of motion is not shown to meet at least the criteria for a zero percent rating and the examination did not show instability. (VAOPGCPREC 9-98 (August 1998)). In rendering this decision, the Board has considered all pertinent aspects of 38 C.F.R. Parts 3 and 4 as required by the Court in Schafrath, supra. However, the pertinent sections do not provide a basis for a higher rating. Additionally, it is noted that the 10 percent disability evaluation currently assigned is the highest rating warranted during the appeal period. See Fenderson, supra. The Board is also satisfied that the current medical evidence reflects the degree of functional impairment resulting from the left knee disability as contemplated in the DeLuca case. Additionally, the evidence is not in equipoise as to warrant consideration of the benefit of the doubt rule. 38 C.F.R. §4.3 (1999) ORDER Entitlement to an increased rating in excess of 20 percent for fractures of multiple ribs, right side with resection of the fifth rib is denied. Entitlement to an increased rating in excess of 10 percent for the residuals of a right knee injury is denied. ROBERT P. REGAN Member, Board of Veterans' Appeals