Citation Nr: 0007133 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 98-07 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an increased evaluation for post-traumatic left knee strain, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for osteoarthritis of the hips, claimed as secondary to the service-connected left knee disability. 3. Well groundedness of a claim for service connection for arthritis of the right knee, claimed as secondary to the service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Valerie E. French, Associate Counsel INTRODUCTION The veteran served honorably on active duty from June 1953 to May 1955, and from the record it can be verified that he had a period of active duty for training with the New York Army National Guard from July 7, 1978, to July 22, 1978. His decorations include the Korean Service Medal, the United Nations Service Medal, and the National Defense Service Medal. This appeal arises before the Board of Veterans' Appeals (Board) from an October 1997 rating decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA), in which entitlement to an evaluation in excess of 10 percent disabling was denied for post-traumatic, chronic strain, left knee, and service connection was also denied for bilateral hip and right knee conditions. The Board notes that in April 1998, a Statement of the Case was issued with regard to the issues on appeal from the October 1997 rating decision. Thereafter, additional pertinent evidence was received at the RO; however, a Supplemental Statement of the Case (discussing this additional evidence) was not issued thereon, as is required by 38 C.F.R. § 19.31 (1999). However, it is found that as the decisions on the merits rendered herein are fully favorable, this procedural deficiency has not resulted in harm to the veteran; nor have his claims been prejudiced by the Board's consideration of this evidence in the first instance. The well grounded claim for service connection for arthritis of the right knee is the subject of a Remand which immediately follows the decision herein. FINDINGS OF FACTS 1. Post-traumatic left knee strain is currently manifested by a moderate degree of instability as evidenced by pain on valgus stress, medial joint line tenderness, antalgic gait with left lateral trunk bending, and decreased stride length. The record indicates that the veteran has required use of a left knee orthosis for mediolateral stability and he currently ambulates with a rolling walker. 2. Diagnosis of traumatic left knee arthritis has been confirmed by x-ray, and range of motion in the left knee is shown to be limited at zero to 105 degrees. The veteran has also complained of frequent pain on use of the left knee. 3. Bilateral hip osteoarthritis has been diagnosed and the veteran's treating VA physician has indicated that it is "definitely possible and most likely reasonable," that altered gait from the service-connected left knee disability has resulted in bilateral advancing hip osteoarthritis. 4. Right knee arthritis has been confirmed by X-ray, and in 1997 a VA examiner has indicated that the persistence of altered weight bearing of the left lower extremity may subsequently cause undue stress and strain to the right knee, and thus, a relationship between right knee arthritis and the veteran's service-connected left knee disability is suggested by the evidence of record. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent disabling have been met for post-traumatic left knee strain. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.10, 4.40, 4.71(a), Diagnostic Code 5257 (1999). 2. The criteria for a separate evaluation of 10 percent disabling are met for traumatic left knee arthritis. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5003, 5010 (1999). 3. Osteoarthritis of the hips is proximately due to or the result of a service-connected left knee disability. 38 U.S.C.A. § 1110, 1131, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.310 (1999). 4. The claim for service connection for right knee arthritis, claimed as secondary to a service-connected left knee disability, is well grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999), that is, the claims are plausible. In addition, claims for increased evaluations are generally considered to be well grounded where the veteran has asserted that a higher rating is justified due to an increase in the severity of a service-connected disability. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). VA has a duty to assist the veteran to develop facts in support of well grounded claims, and in this case, the Board finds that VA's duty to assist the veteran has been satisfied as the record does not indicate the need to obtain any additional pertinent treatment records or documentation (except as to the right knee disorder). 38 U.S.C.A. § 5107(a) (West 1996) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). I. Increased evaluation for post-traumatic left knee strain The veteran has complained of frequent left knee pain and swelling as well as instability for which he was issued a knee brace. He also contends that a separate compensable rating is warranted for arthritis in the left knee. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule), 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999); 38 C.F.R. Part 4 (1999). The Board has carefully reviewed the pertinent medical evidence, including the veteran's entire medical history in accordance with 38 C.F.R. § 4.1 (1999) and Peyton v. Derwinski, 1 Vet.App. 282 (1991). 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). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1999). In evaluating service-connected disabilities, the Board looks to functional impairment. The Board attempts to identify the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (1999). Disability of the musculoskeletal system is primarily 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss with respect to all these elements. 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 or other pathology, or it may be due to pain, supported by adequate pathology and evidence 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. 38 C.F.R. § 4.40 (1999). See also DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that with regard to evaluations under Diagnostic Code 5257, 38 C.F.R. §§ 4.40 and 4.45, as interpreted in DeLuca, supra, are not applicable as Diagnostic Code 5257 is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 9 (1996). In December 1979, service connection was granted for post- traumatic, chronic strain, left knee, medial collateral ligament, with assignment of a zero percent (noncompensable) evaluation under Diagnostic Code 5257. It was noted that a left knee injury was incurred in July 1978, when the veteran was participating in a four-mile march during a period of active duty for training. On VA examination in June 1991, findings included definite laxity and deficiency of the left knee medial collateral ligament with lateral instability, pain on valgus stress of the left knee, and tenderness along the medial joint line. Range of motion was from zero to 130 degrees, and x-rays revealed evidence of likely minimal degenerative changes in the medial compartment of the left knee. A diagnosis of post-traumatic changes of the left knee with deficiency of the medial collateral ligament, stress symptoms increasing, and post-traumatic degenerative arthritis of the knee, is shown. In September 1991, an increased evaluation of 10 percent was granted for the left knee disability under Diagnostic Code 5257. Diagnostic Code 5257 provides disability evaluations based on objective evidence of recurrent or lateral instability which is slight (10 percent disabling); moderate (20 percent disabling); or severe (30 percent disabling). The Board notes that a VA General Counsel Precedent Opinion (VAOPGCPREC 23-97, issued July 1, 1997) provides for multiple ratings under Diagnostic Code 5257 and Diagnostic Code 5003- 5010 (for degenerative and post-traumatic arthritis, respectively). That opinion held that a claimant who has both arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. In VAOPGCPREC 9-98 (issued August 14, 1998), VA's General Counsel held that separate ratings may be assigned for arthritis based upon x-ray findings and limitation of motion that does not rise to a compensable level under Diagnostic Code 5260 or Diagnostic Code 5261. In addition, a separate rating for arthritis could be awarded under 38 C.F.R. § 4.59, which provides that the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Diagnostic Code 5010 provides that traumatic arthritis, established by x-ray, is to be evaluated on the basis of limitation of motion under diagnostic criteria for the specific joint or joints involved as set forth in Diagnostic Code 5003. However, when limitation of motion is noncompensable, a 10 percent evaluation is to be assigned for each major joint affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999). Diagnostic Code 5260 provides a compensable evaluation where flexion of the leg is limited to 45 degrees or less, and Diagnostic Code 5261 provides a compensable evaluation where extension of the leg is limited to 10 degrees or more. 38 C.F.R. § 4.71a (1999). Having reviewed the record, the Board has concluded that the objective evidence supports the assignment of both an increased evaluation of 20 percent disabling for the veteran's service-connected left knee disability under Diagnostic Code 5257 and the assignment of a separate disability evaluation for traumatic arthritis in the left knee under Diagnostic Code 5010-5003 of 10 percent. The record indicates that veteran was paid an annual clothing allowance for a metal knee brace with inserts in 1994 and 1995. A June 1996 x-ray report shows findings of degenerative changes in the left knee, with further collapse of the left medial compartment which was highly suggestive of progressive thinning of the cartilage. In March 1997, a VA physician provided an assessment of severe 3 compartment osteoarthritis in the left knee. On VA examination in July 1997, it was noted that the left knee had been managed conservatively with the use of a knee orthosis for mediolateral stability. The veteran reported that his left knee pain had worsened and, since June 1995, he had been using forearm crutches for mobility due to left knee pain. Objective examination revealed that there was no thigh atrophy, strength was 4/5 in both lower extremities, and deep tendon reflexes were 1+ and symmetrical. There was tenderness on palpation of the medial joint line space and pain was elicited on valgus stress. Left knee range of motion was from zero to 105 degrees. He ambulated with a rolling walker with an antalgic gait with left lateral trunk bending and decreased stride length. An impression of osteoarthritis of the left knee was provided, and the examiner commented that with flare-ups he may have increased weakness and decreased range of motion, but this could not be quantified further without examining him at that time. A December 1998 left knee x-ray revealed findings of degenerative changes of the medial joint space, with narrowed, sclerotic, and sclerotic squaring of the articular margins. In the Board's view, the available evidence demonstrates that the veteran's left knee disability is currently productive of a moderate left knee disability which would support the assignment of a 20 percent evaluation under Diagnostic Code 5257. While specific stability testing was not performed at the time of the 1997 VA examination, the record indicates that the veteran has used a left knee brace for mediolateral instability and he requires the use of forearm crutches and a rolling walker for ambulation. Current findings include antalgic gait with lateral trunk bending, decreased stride length, and objective evidence of pain on valgus stress. Furthermore, the veteran has complained of frequent pain and giving-way in the left knee. In the Board's view, therefore, the available objective evidence is indicative of a moderate degree of left knee disability, and therefore, the criteria for an evaluation of 20 percent disabling have been met under Diagnostic Code 5257. The evidence shows that in addition to instability, the veteran suffers from additional disability as a result of post-traumatic arthritis in the left knee under Diagnostic Code 5010. Although limitation of motion is not shown to a compensable degree under Diagnostic Codes 5260 or 5261, range of motion is shown to be limited as flexion is shown only to 105 degrees (as opposed to normal flexion of 140 degrees, see Plate II, 38 C.F.R. § 4.71(1999)). The record also documents the veteran's subjective complaints of left knee pain. As limitation of a major joint has been shown, additional disability has been identified and an evaluation of 10 percent disabling is warranted for traumatic left knee arthritis under Diagnostic Code 5010-5003. II. Service connection for osteoarthritis of the hips Service connection for osteoarthritis of the hips is claimed as secondary to the service-connected left knee disorder. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service-connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (1999). Having reviewed the record, the Board has concluded that service connection is warranted for osteoarthritis of the hips, as secondary to a service-connected left knee disability. Findings of degenerative changes in the left hip are shown in the record as early as 1993, and current x-ray reports show findings of degenerative arthritis in both the right hip and the left hip. In March 1997, the veteran's VA physician indicated an assessment of severe 3 compartment left knee osteoarthritis which had caused alteration of gait. The VA physician also stated that it is definitely possible and most likely reasonable that the altered gait from his service-connected left knee had resulted in bilateral advancing hip osteoarthritis. The physician concluded that it was quite reasonable that the bilateral hip problems should be a secondary service-connected disability. Likewise, on VA examination in July 1997, the examiner provided an impression of osteoarthritis of the left hip and it was noted that the left knee traumatic osteoarthritis and his obesity had contributed to the bi-mechanical derangement and stress to the left hip from altered weight bearing of the left lower extremity, the persistence of which might subsequently cause undue stress and strain to the right hip, although it would be impossible to determine what portion of the disability of the hips resulted from the aggravation of the left knee. In light of the VA medical opinions that the veteran's service connected left knee disability has contributed to the development of osteoarthritis in the hips, the Board finds that the available evidence is sufficient to show that the present osteoarthritis in the hips is proximately due to or the result of the service-connected left knee disability. In making this determination the Board has utilized 38 C.F.R. § 3.102 to resolve reasonable doubt regarding the etiology of the bilateral hip osteoarthritis in the veteran's favor. Accordingly, service connection is granted for osteoarthritis of the hips. III. Well groundedness of claim for service connection for a right knee disability The veteran contends that service connection is warranted for arthritis in the right knee, as secondary to his service- connected left knee disability. The threshold question that must be resolved with regard to each claim is whether the veteran has presented evidence that the claim is well grounded, that is, that each claim is plausible. VA has a duty to assist the veteran to develop facts in support of a well grounded claim. 38 U.S.C.A. § 5107(a) (West 1996) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). "[A] secondary-service connection claim is well grounded only if there is medical evidence to connect the asserted secondary condition to the service-connected disability." Velez v. West, 11 Vet. App. 148, 158 (1998). Having reviewed the record, the Board has concluded that the veteran has presented a well-grounded claim for service connection for arthritis of the right knee. The record shows that service connection was granted for post-traumatic strain of the left knee in 1979. Current medical evidence indicates the manifestation of arthritis in the right knee, and degenerative changes in that knee have been identified by x- ray. In addition, on VA examination in 1997, the examiner suggested that persistence of altered weight bearing of the left lower extremity, in conjunction with left knee traumatic left knee osteoarthritis and obesity, might subsequently cause undue stress and strain to the right knee. In the Board's view, the veteran's claim has been rendered plausible, or capable of substantiation, by way of evidence showing the current manifestation of a right knee disability and a medical opinion suggesting a relationship between that disability and the service-connected disability of post- traumatic left knee strain. For these reasons, the Board finds that the claim for service connection for arthritis in the right knee, claimed as secondary to a service-connected left knee disability, is well grounded. ORDER An evaluation of 20 percent disabling is granted for post- traumatic left knee strain under Diagnostic Code 5257, subject to applicable laws and regulations governing the award of monetary benefits. A separate evaluation of 10 percent disabling is granted for traumatic left knee arthritis under Diagnostic Code 5010- 5003, subject to applicable laws and regulations governing the award of monetary benefits. Service connection is granted for osteoarthritis of the hips. The claim for service connection for arthritis of the right knee is well grounded. REMAND The veteran contends that his currently manifested right knee arthritis is etiologically related to his service-connected left knee disability. Having found this claim to be well grounded, VA has a duty to assist the veteran in the development of pertinent facts. Littke v. Derwinski, 1 Vet.App. 90 (1990). This includes the duty to obtain medical opinions which may provide information which is helpful to a determination as to whether service connection is warranted. The record indicates that on VA examination in 1997, the examiner suggested that undue stress on the right knee could be caused by altered weight bearing of the left lower extremity. However, an opinion was not provided as to the relationship between the current diagnosis of degenerative arthritis in the right knee and the service-connected disability of post-traumatic left knee strain. On remand, the veteran will be afforded a new VA orthopedic examination which focuses on the right knee and an opinion will be sought as to the etiology of the currently manifested right knee arthritis. In addition, the veteran has suggested that his VA physician(s) have indicated that the current right knee disability is related to his service-connected left knee disability. On remand, the veteran will be provided with the opportunity to obtain such an opinion and to submit it as evidence in support of his claim. Accordingly, this claim is REMANDED for the following actions: 1. The veteran and his representative should be notified of and provided with an appropriate amount of time within which to obtain and submit additional evidence, to include medical opinions from either VA or private physicians in support the contention that the currently manifested arthritis in the veteran's right knee was caused by or is related to, or aggravated by, his service- connected left knee disability. 2. Upon completion of the foregoing, the RO should schedule the veteran for an orthopedic examination by a VA physician, for the purpose of obtaining an opinion as to the etiology of the arthritis which is currently manifested in the veteran's right knee. On right knee examination, all objective findings should be noted in detail and all special tests and studies, including x-rays, should be conducted as indicated. Upon completion of the examination and review of the veteran's medical history, the examiner should provide an opinion as to the likely cause of the arthritis which is currently shown in the veteran's right knee, to include an opinion as to whether this right knee arthritis is related to the service- connected post-traumatic left knee strain or to some other cause, and as to whether it is more likely than not that the right knee arthritis is proximately due to or the result of, or aggravated by, the service-connected left knee disability. The veteran's medical history should be reviewed prior to the examination, and to that end, the claims folder and a copy of this Remand should be provided to the examiner. Complete rationales should be provided for any opinions given and conclusions reached, and if the specified opinions cannot be provided, the reasons therefor should be clearly indicated. 3. Thereafter, the RO should review the claims folder in order to ensure that the specified evidentiary development has been completed to the extent possible. If any development remains incomplete, appropriate corrective measures should be taken. If the VA examination report does not include all of the requested findings and opinions, it should be returned for corrective action. 4. Upon finding that the required development has been completed to the fullest extent possible, the RO should review the appellant's claim based on all of the evidence which is now of record, in order to determine whether a favorable outcome is now warranted. If the decision remains adverse, the RO should provide the appellant and his representative with a Supplemental Statement of the Case, along with an adequate period of time within which to respond thereto. Thereafter, the case should be returned to the Board for further action, as appropriate. The veteran is hereby notified of the potential consequences of his failure to report for the scheduled examination. This is to put the veteran on notice, and in keeping with the VA's duty to assist, as announced in Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991), that at least in part the purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (1999) failure to cooperate by attending the requested VA examination may result in an adverse determination. The appellant 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. The purpose of this REMAND is to conduct further evidentiary development. The Board intimates no opinion as to the ultimate outcome of the claim on appeal. JOHN FUSSELL Acting Member, Board of Veterans' Appeals