BVA9505970 DOCKET NO. 91-45 552 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for left knee, left ankle, low back and left hip disabilities with degenerative changes secondary to a service-connected right knee disability. 2. Entitlement to an increased rating for a right knee disability, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from March 1943 to September 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 1990 decision by the Department of Veterans Affairs (VA), Cleveland, Ohio, Regional Office (RO), which found that no new and material evidence had been presented to reopen claims for secondary service connection for left knee, left ankle, low back, and left hip disabilities. (An August 1989 Board decision denied secondary service connection for left knee, left ankle, low back, and left hip disabilities.) The veteran testified at a hearing conducted at the RO in April 1991. In October 1992, the Board determined that the evidence which had been added to the record since the August 1989 decision of the Board was new and material so as to permit reopening of the veteran's claims for secondary service connection, and then remanded the case to the RO for further development. An RO decision in March 1993 found that the veteran's degenerative changes of the right knee which necessitated a total right knee replacement could not be dissociated from his service- connected residuals of an arthrotomy of the same joint. Accordingly, service connection was established for the right total knee replace-ment; a temporary total rating was granted under the provisions of 38 C.F.R. § 4.30 (1994) for his right knee disability, effective from November 4, 1992, (date veteran was admitted to a VA hospital for the total knee replacement) through December 1992; a 100 percent schedular rating was assigned from January 1, 1993, through December 1993 (38 C.F.R. § 4.71a, Code 5055 (1994)); and thereafter the previously assigned 30 percent rating was continued. An RO decision in June 1993 confirmed the 30 percent rating and denied secondary service connection for the remaining disabilities at issue. (As the June 1993 RO decision denying the claims for secondary service connection followed the Board's reopening of those claims and was adjudicated on the merits, the decision that follows on the merits does not prejudice the veteran. Compare Bernard v. Brown, 4 Vet.App. 384 (1993).) Following the receipt of additional evidence, an RO decision in December 1993 confirmed the assignment of a 30 percent rating for a right knee disability, which decision the veteran has appealed. He is also claiming shortening of the left leg due to his total knee replacement, which needs to be addressed by the RO. Disabilities involving the left ankle, low back, and left hip will be addressed in the REMAND section of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his disabilities, including degenerative changes of the left knee, left ankle, low back, and left hip, are etiologically related to his service-connected right knee disability. The representative argues that there is VA medical evidence of record which supports the contended causal relationship. The veteran further asserts that his right knee disorder is more disabling than currently evaluated, noting that he can only ambulate with the aid of crutches. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the claims for secondary service connection for a left knee disability with degenerative changes and an increased rating to 60 percent for a right total knee replacement. FINDINGS OF FACT 1. The veteran's left knee disability is etiologically related to his service-connected right knee disability. 2. His service-connected right knee replacement is productive of chronic residuals consisting of painful motion and weakness. CONCLUSIONS OF LAW 1. A left knee disability with degenerative changes is proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.310(a) (1994). 2. The criteria for a 60 percent rating for a right total knee replacement have been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from March 1943 to September 1946. His service medical records show that he underwent an arthrotomy of the right knee in December 1943, which resulted in a diagnosis of traumatic arthritis, which was attributed to a prior injury and dislocation of the knee. The service medical records, including a report of a separation examination performed in August 1946, are negative for any findings indicative of left knee disability, including degenerative changes or arthritis. An RO decision in September 1946 granted service connection and assigned a noncompensable rating for an arthrotomy scar on the right knee. VA outpatient clinic records show that the veteran was seen on several occasions from 1975 to 1976 for bilateral knee complaints. During this time, he had degenerative arthritis of both knees, right worse than left. He also complained of low back pain. In December 1975, an X-ray examination revealed marked narrowing of the L5 - S1 disc space with anterior herniation of L4 on L3 and L5. An RO decision in July 1976 increased the rating for a right knee disability from noncompensable to 10 percent disabling VA outpatient clinic records, dated from 1977 to 1978, show that the veteran continued to be seen periodically for bilateral knee and low back complaints. An RO decision in March 1978 increased the rating for a right knee disability from 10 percent to 20 percent. It was again noted on a VA orthopedic examination in December 1979 that the veteran was having left knee symptoms, and an X-ray examination at that time confirmed arthritic changes of the knees, moderate to fairly severe on the right and moderate on the left. An RO decision in February 1980 increased the rating for a right knee disability from 20 percent to 30 percent. The veteran underwent a VA orthopedic examination in November 1983. Abnormal clinical findings pertaining to both knees were reported at that time. The examiner could not definitely opine that the veteran's left knee disorder was caused by his right knee disability, but believed that the left knee disorder was aggravated by the right knee condition. Additional VA clinical records show that the veteran was seen on a number of occasions from 1985 to 1987 for multiple joint complaints, including low back, left knee, and bilateral knee symptoms. He complained of left hip pain in August 1986, and an X-ray examination reportedly showed minimal degenerative changes of that joint. When seen in an orthopedic clinic in February 1987, it was opined that his left knee disability was due to degenerative joint disease and overuse secondary to his right knee disability. An orthopedist opined in August 1987 that the veteran's degenerative joint disease of the right knee exacerbated a predisposition towards problems with his left knee so, therefore, they were related conditions. Essentially the same assessment was recorded on several other occasions during the latter 1980's. Numerous X-ray examinations during this time confirmed degenerative joint disease of the knees and lumbosacral spine. It was reported by a radiologist in March 1988 that the veteran had an unusual degree of degenerative disc changes in the lumbosacral spine region even at his age. He underwent an orthopedic examination in May 1988, and his complaints at that time included significant pain in both hips, knees, ankles and low back. The diagnoses were gout with arthritis of many joints; degenerative joint disease of both knees, hips and lumbar area; and lumbar spondylolisthesis. The orthopedist opined that the veteran's spondylolisthesis was present since birth and that his right knee injury certainly set up the situation in which he used his left lower extremity for more activity and put extra strain on that leg, which in turn put addition strain on the lumbar area; his degree of degenerative joint disease was not believed to be unusual for his age of 71; and his right knee condition was a predisposition to his current left knee disability and indirectly contributed to strain in the lumbar and hip areas. The examiner indicated that arthritis could not be blamed directly on the right knee. The veteran continued to be seen in a VA outpatient clinic in 1989 and 1990 for multiple joint complaints. It was opined in February 1990 that his degenerative joint disease of the left knee might be due to chronic biomechanical stresses secondary to an altered gait from a chronic injury to the opposite side. A second clinician agreed with that assessment. The veteran testified at a hearing conducted at the RO in April 1991 that his left ankle, left knee, left hip, and low back disabilities gradually and progressively developed over the years as the result of the increased strain placed on those joints from his altered gait associated with his service-connected right knee disability. He said that physicians over the years have indicated that the contended causal relationship was possible. He further testified, in essence, that he received treatment for those disabilities on numerous occasions since service, including during the years immediately after his separation from active duty, but he believed physicians who treated him were deceased. The veteran was hospitalized in a VA medical center in November 1992 for surgical treatment of progressive degeneration of the right knee with increasing pain. He underwent a total right knee replacement. No postoperative complications were noted. It was reported that he went to physical therapy and improved dramatically prior to discharge. Additional VA outpatient clinic records show that the veteran was seen on a number of occasions from 1991 to 1992 for bilateral knee symptoms attributed to degenerative joint disease, right worse than left. The veteran underwent a VA orthopedic examination in January 1993. It was noted that he entered with a single crutch on his left hand. He said that he began having pain with weight bearing on his left hip, left knee, and left ankle 14 years ago. He complained of marked pain in his hips, knees, ankles, and lumbar spine. His ambulation was somewhat slow and difficult, and he had an antalgic gait. Clinical evaluation revealed a 24- centimeter longitudinal surgical scar on the anterior aspect of the right knee, which was noted as still tender. The flexor and extensor muscles of the right knee were somewhat weak, and there was a 1-centimeter difference between both thighs upon circumference measurement. A 10-centimeter-long medial parapatellar surgical scar on the right knee was also noted; the scar was not tender and nonadherent. Range of motion of the right knee was from approximately 3 degrees to 75 degrees. The examiner was unable to determine if instability was present, and due to limited mobility and pain, the knee examination was limited. There was no effusion of either knee. The examiner also noted limitation of motion of the lumbar spine and left knee. Examination of the hips showed a fairly good range of motion, with flexion to approximately 80 degrees on the right and 100 degrees on the left, and abduction to approximately 35 degrees, bilaterally. Rotation of the hips was not attempted due to pain when initiating the motion. There was some moderate swelling of the left ankle, which was not present on the right. Range of motion of both ankles was fairly good, aside from dorsiflexion limited to 10 degrees, bilaterally. The veteran complained of pain in the left ankle while ambulating. An X-ray examination of the right knee revealed satisfactory position and alignment of the knee prosthesis. An X-ray of the lumbosacral spine revealed marked osteoarthritis of all lumbar vertebra and severe degenerative disc disease, along with Grade I spondylolisthesis of L4-L5 and possible spondylolisthesis involving the L4. An X-ray of the left knee showed minimal osteoarthritis involving the posterior surface of the patella and soft tissue calcification that was thought to be compatible but not diagnostic of gouty arthritis; this was also present on the right knee X-ray. X-rays of both hips were negative. Marked osteoarthritis involving the entire cervical spine was also noted on radiographic examination. The diagnoses were that both ankles had radiological signs of gout. The examiner opined that it was possible that the veteran's right knee condition was aggravating his left knee disability. The veteran underwent a VA orthopedic examination in April 1993. History, clinical findings and radiographic findings remained essentially unchanged. The examiner opined that the veteran's lumbar spine symptoms were possibly due to severe osteoarthritis and spondylolisthesis, but aggravated by the limping due to his right knee condition. It was further opined that the shifting of weight to the left knee could make the gout on that joint more symptomatic. The examiner added that the same might be true for the veteran's left ankle. A VA X-ray examination of the veteran's right knee in May 1993 noted the total right knee replacement with resurfacing of the patella; no complications were seen, and the impression was an unremarkable total knee replacement. An X-ray examination of the veteran's lumbar spine in September 1993 revealed severe degenerative disc changes at multiple levels. Slight scoliosis in the lower lumbar region was also noted. The veteran underwent a VA orthopedic examination in November 1993. He indicated that his right knee continued to be painful and stiff and that he had difficulty in walking. He said that he had problems with his left knee as well and that he had been told that his left leg was now shorter than the right. The examiner opined that this was probably related to the total knee replacement. Upon physical examination, it was noted that the veteran used two Canadian crutches, got up and down from a sitting position with considerable difficulty, and had difficulty getting up on the examining table, dressing, and undressing. The right knee was 1 inch larger than the left and flexed from 5 degrees to 100 degrees. There was no significant crepitus present. The left knee flexed from 0 to 120 degrees; there was considerable crepitus on the left. Both knees were stable, but it was indicated that the veteran had considerable difficulty walking because of his knee pathology. The diagnoses were status right total knee replacement and osteoarthritis of the left knee. II. Analysis The Board initially finds that the veteran has presented well- grounded claims within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are not inherently implausible. Relevant evidence as to the knee issues has been obtained by the RO, and there is no further duty to assist the veteran in developing the facts pertinent to these claims. Id. A. Secondary Service Connection for a Left Knee Disability The medical evidence shows that the veteran's left knee disability, including degenerative joint disease, was first clinically and radiographically demonstrated years after service. The essence of his claim is that the disability in question is causally linked to his service-connected right knee disability. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The veteran has been seen in a VA orthopedic clinic on numerous occasions in recent years for evaluation of his bilateral knee symptoms. It was opined on several of these occasions that his service-connected right knee disability aggravated his left knee disorder. The VA physician who examined the veteran in January and April 1993 offered a similar assessment. However, a grant of service connection is not warranted for aggravation of a non- service-connected condition by a service-connected condition because aggravation is not causation. Leopoldo v. Brown, 4 Vet.App. 216 (1993). However, on two occasions, in February 1987 and again in February 1990, the clinician who examined the veteran in the VA orthopedic clinic opined that the veteran's left knee disability was due to his right knee disorder. This is strong evidence in support of the claim, and it is from a competent medical source. Nothing refutes it. Accordingly, secondary service connection for a left knee disability, including degenerative joint disease, is warranted. B. An Increased Rating for a Right Knee Disability Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The veteran underwent a right total knee replacement during a VA hospital stay in November 1992. He was granted a temporary total rating under 38 C.F.R. § 4.30 from the date he was admitted through December 1992, and was thereafter granted a 100 percent schedular rating, under the provisions of 38 C.F.R. § 4.71a, Code 5055, from January 1, 1993, through December 31, 1993, or for a period of one year. His preoperative 30 percent rating was thereafter assigned. Based on Code 5055, the veteran correctly received a 100 percent rating for one year following implantation of his right knee prosthesis. However, he is currently in receipt of the minimum rating of 30 percent under that code. Chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent evaluation. With intermediate degrees of residual weakness, pain or limitation of motion, the knee is rated by analogy to Diagnostic Codes 5256, 5261, or 5262. Several VA orthopedic examinations performed after the veteran's knee surgery clearly show that he continues to have a great deal of difficulty with ambulation. He does not have more than mild to moderate limitation of motion of the knee joint, and has no apparent instability. (Thus, a rating in excess of 30 percent under 38 C.F.R. § 4.71a, Codes 5256 through 5262 would not be warranted if he were to be rated by analogy to those codes.) However, if either chronic postoperative residuals consisting of severe painful motion or weakness in the affected extremity is present, a 60 percent rating is warranted under Code 5055. While it is unclear whether he has painful motion of the joint, it is evident that he has weakness of the right leg attributable to his right knee replacement. Various examiners did not quantify the degree of weakness, but the veteran's obvious marked difficulty walking and the need for crutches reflect severe weakness in the affected extremity. Accordingly, an increased rating to 60 percent is warranted under 38 C.F.R. § 4.71a, Code 5055. ORDER Secondary service connection for a left knee disability with degenerative changes is granted. An increased rating to 60 percent for a right knee disability is granted. REMAND When the Board remanded this case, it asked that an orthopedic examination be conducted and that the examiner provide an opinion as to the etiology of the veteran's disabilities of the left ankle, low back, and left hip, including whether any of these disabilities were attributable to service. Unfortunately, the etiological question was not answered. This requires medical expertise which is beyond the purview of the Board. See Colvin v. Derwinski, 1 Vet.App. 171 (1991). In order to obtain such evidence, the case is REMANDED for the following actions: 1. The RO should contact the veteran, through his representative, and ask him to provide any additional post-service treatment records, not already on file, which might have a bearing on his claim. He should provide a full list of names, addresses, and dates of treatment for any sources identified. After securing the necessary release forms, the RO should obtain these records directly, following the procedures of 38 C.F.R. § 3.159. 2. An examiner with expertise in orthopedic function should be asked to review the claims file, including the veteran's service records, and examine the veteran. Orthopedic function studies and any other tests deemed necessary to arriving at a diagnosis should be conducted. The examiner should provide an opinion as to whether it is at least as likely as not that the veteran has a disability of the left ankle, low back, or left hip which had its onset during military service or is attributable to a service-connected right knee impairment. All findings, opinions, and bases therefor should be set forth in detail. 3. The RO should take adjudicatory action based on the entire record. If the claim of service connection for any of these disabilities is denied, a supplemental statement of the case should be issued. After the veteran and his representative have been given an opportunity to respond to any supplemental statement of the case, the claims folder should be returned to this Board for further appellate review. No action is required of the veteran until he receives further notice. The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. M. CHEEK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).