Citation Nr: 0006751 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 93-15 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for left knee disability. 2. Entitlement to an initial rating in excess of 10 percent for right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from May 1963 to May 1968 and from January 1969 to August 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 1993 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This case was the subject of Board remands dated in July 1995, November 1997 and March 1999. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The medical evidence includes X-ray evidence of minimal arthritis of both knees with chronic pain and functional impairment, such that the veteran cannot squat or kneel, should not stand or walk for more than 4 hours per 8-hour workday in broken intervals, and should not squat or kneel or engage in an occupation where such motion is required. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left knee disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5258, 5259, 5260, 5261 (1999); VAOPGCPREC 9-98. 2. The criteria for a disability rating in excess of 10 percent for right knee disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5258, 5259, 5260, 5261 (1999); VAOPGCPREC 9-98. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran appeals a January 1993 RO rating decision in which service connection for left and right knee disability was granted, effective September 1992, insofar as the knees were evaluated as 10 percent disabling each. The veteran contends a higher rating for his left and right knee disabilities is warranted. During an October 1992 VA orthopedic examination, the veteran gave a history of aching and swelling of the knees, precipitated by activity. Physical examination revealed that he could walk without a definite limp, and could walk on his heels and toes without change; but that in squatting, he was reluctant to flex more than 90 degrees. No gross crepitance was detected. The diagnosis was arthritis of the knees with history of effusions; symptoms were described as mild on examination. October 1992 VA X-rays of the knees revealed no gross osseous or joint or soft tissue abnormality. VA records of treatment in April 1994 include an impression of degenerative changes to both knees. VA records of treatment in November 1994 reveal that the veteran complained of chronic knee pain with swelling, starting about 5 years prior. Physical examination of the knees revealed that they were nontender with full range of motion. The treating physician's impression was chronic knee pain secondary to degenerative joint disease. VA records of treatment in July 1994, January 1995 and May 1995 reveal that the veteran complained of chronic knee pain. During a July 1999 VA orthopedic examination, the veteran gave a history of developing swelling in his right knee in 1988, with no specific history of trauma, and aggravated by jogging, squatting and kneeling. He had given up jogging but said that he still had swelling in his knees if he squatted or kneeled, and that both knees were stiff after rest. Physical examination of the left knee revealed full extension and 140 degrees of flexion. He had very well developed musculature with no quadriceps atrophy and no patellar instability. He had mild nontender retropatellar crepitations on the left. He had no swelling or effusion. His collateral ligaments were stable to varus and valgus stress and extension to 30 degrees of flexion. The anterior drawer test and posterior drawer test were negative. The Lachman test was negative. Physical examination of the right knee revealed full extension and 140 degrees of flexion in the right knee. There was only a trace of retropatellar crepitation. The knee had no quadriceps atrophy, patellar instability, swelling or effusion. The collateral ligaments were stable to varus and valgus stress and extension to 30 degrees of flexion. The anterior drawer test and posterior drawer test and Lachman test were negative. Gait was normal. X-rays of the left and right knees were similar and revealed very minimal osteoarthritis of both knees. The examiner asserted that the veteran had no measurable weakness in either knee. According to the examiner, the veteran had no loss of motion of the knees due to weakness, fatigue or incoordination. He asserted that functional ability may be compromised temporarily during acute flare-ups, and that it was not feasible to estimate the additional range of motion lost due to pain on use or during flare-ups. The amount of arthritis in the knees was noted to be minimal, and the examiner opined that the arthritis would not prevent the veteran from doing a job which did not involve constant waking and standing. The examiner asserted that the veteran should be able to stand or walk in broken intervals for four out of eight hours. He indicated that the veteran's job should not involve kneeling or squatting. Analysis As a preliminary matter, the Board notes that the veteran has presented well-grounded claims for an increased evaluation within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran's claims that his conditions are, and have been, more severe than currently evaluated are plausible. The Board is also satisfied that all relevant facts pertinent to these issues have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist him as mandated by law. 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1 and 4.2, the Board has reviewed all the evidence of record, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. Fenderson v. West, 12 Vet. App. 119 (1999). When assigning an initial rating, the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the present level of disability is of primary importance, is not applicable. Id. at 8. Therefore, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as staged ratings. Id. at 9. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, Schedule for Rating Disabilities (rating schedule). 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. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups is rated as 10 percent disabling, while arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, is rated as 20 percent disabling. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257, recurrent subluxation or lateral instability is rated as 10 percent disabling if slight, and 20 percent disabling if moderate. Under Diagnostic Code 5258, dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint is rated as 20 percent disabling, while under Diagnostic Code 5259, removal of cartilage with symptomatic residuals is rated as 10 percent disabling. Under Diagnostic Code 5260, limitation of flexion of the leg to 15 degrees is rated as 30 percent disabling; to 30 degrees is rated as 20 percent disabling; to 45 degrees is rated as 10 percent disabling; and to 60 degrees is rated as 0 percent disabling. Under Diagnostic Code 5261, limitation of extension of the leg to 45 degrees is rated as 50 percent disabling; to 30 degrees is rated as 40 percent disabling; to 20 degrees is rated as 30 percent disabling; to 15 degrees is rated as 20 percent disabling; to 10 degrees is rated as 10 percent disabling; and to 5 degrees or less is rated as noncompensably disabling. The Board must consider all pertinent diagnostic codes under the VA Schedule for Rating Disabilities in 38 C.F.R. Part 4 and application of 38 C.F.R. § 4.40, regarding functional loss due to pain, and 38 C.F.R. § 4.45, regarding weakness, fatigability, incoordination or pain on movement of a joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion. DeLuca. The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered when assigning an evaluation for degenerative or traumatic arthritis. VAOPGCPREC 9-98. The intent of the schedule is to recognize actually painful motion with joint or periarticular pathology as productive of disability. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. In the present case, range of motion measurements or underlying pathology other than arthritis does not justify a compensable rating. The veteran has not been diagnosed as having instability problems or damaged cartilage, and no cartilage has been removed. He has generally been described as having full range of motion, well in excess of the range required for a compensable rating for extension or flexion of the legs. There is no weakness, incoordination, or fatigability. However, there is functional impairment of motion of the knees due to pain and arthritis. The medical evidence includes X-ray evidence of minimal arthritis, with chronic pain and functional impairment, such that the veteran cannot squat or kneel, should not stand or walk for more than 4 hours per 8-hour workday in broken intervals, and should not squat or kneel or engage in an occupation where such motion is required. Additionally, the VA treatment records reflect chronic pain characteristic of arthritis and degenerative joint disease of the knees. In light of the foregoing, the Board determines that based upon functional impairment and pain on use, with underlying arthritic etiology, a rating of 10 percent for each knee is warranted. The next higher rating of 20 percent is not warranted because, as noted above, the functional impairment due to arthritis reflected by the medical evidence of record is the basis for the 10 percent rating for each knee, and the criteria for a compensable rating under the diagnostic codes for rating knee disabilities are not otherwise met. An additional rating for arthritis of two major joints is not warranted because the pain and functional impairment due to the arthritis has been explicitly considered and is the basis for the rating of 10 percent for each knee. To additionally rate these symptoms under Diagnostic Code 5003 would be impermissible pyramiding. 38 C.F.R. § 4.14. Although this is an 'initial rating' claim, all relevant medical evidence has been considered in this case, and there is no medical evidence commensurate with a rating of greater than 10 percent for each knee during the pendency of the veteran's claim. Fenderson. ORDER The claim for a rating in excess of 10 percent for left knee disability is denied. The claim for a rating in excess of 10 percent for right knee disability is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals