Citation Nr: 0000810 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 98-12 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for residuals of right knee surgery prior to June 15, 1998. 2. Entitlement to an evaluation in excess of 20 percent for residuals of right knee surgery as of June 15, 1998, and thereafter. 3. Entitlement to an evaluation in excess of 10 percent for residuals of laceration of the nerves, muscles, tendons and radial artery of the right arm prior to October 8, 1998. 4. Entitlement to an evaluation in excess of 20 percent for residuals of laceration of the nerves, muscles, tendons and radial artery of the right arm as of October 8, 1998, and thereafter. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The veteran served on active duty from June 1974 to July 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, granting 10 percent ratings for residuals of right knee surgery with osteochondritis disease and residuals of laceration of the right forearm. An appeal followed, and by rating action entered in November 1998, the RO increased the rating assigned for postoperative osteochondritis of the right knee from 10 percent to 20 percent, effective from October 8, 1998 (the date of a VA medical examination), and increased the rating for residuals of laceration of the nerves, muscles, tendons and radial artery of the right arm from 10 percent to 20 percent, effective from October 8, 1998. Further rating action by the RO in April 1999 modified the effective date of the rating increase to 20 percent for osteochondritis of the right knee to June 15, 1998 (the date of a report of private medical treatment). Consequently, the issues for review by the Board at this time are as reflected on the title page of this document. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. Prior to June 15, 1998, there was not shown to be present more than a slight impairment of the right knee manifested by recurrent subluxation or lateral instability; indicia of ankylosis, effusion into the right knee joint, or impairment of function due to knee scarring were absent. 3. As of June 15, 1998, and thereafter, the veteran's residuals of right knee surgery included complaints of episodes of "locking," pain and transient incapacitation, with a showing of not more than moderate impairment of the right knee manifested by recurrent subluxation or lateral instability. 4. Both prior to and after June 15, 1998, the veteran had degenerative arthritis of the right knee with a showing of some limitation of motion. 5. Both prior to and after October 8, 1998, the veteran's residuals of laceration of the nerves, muscles, tendons and radial artery of the right arm were manifested by a loss of sensation in his hand and mild weakness, with a showing of mild incomplete paralysis, but none greater, of the right radial nerve. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for residuals of right knee surgery with osteochondritis prior to June 15, 1998 have not been met. 38 U.S.C.A. §§ 1155, 5107(a)(West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5257, 5258, (1999). 2. The criteria for an evaluation in excess of 20 percent for residuals of right knee surgery with osteochondritis on and after June 15, 1998, have not been met. 38 U.S.C.A. §§ 1155, 5107(a)(West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5257, 5258, (1999). 3. The schedular criteria for a separate 10 percent rating for degenerative arthritis of the right knee prior to, on and after June 15, 1998, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic Codes 5003, 5261 (1999). 4. The criteria for an evaluation of 20 percent, but none greater, for residuals of laceration of the nerves, muscles, tendons and radial artery in the right arm prior to October 8, 1998, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8514 (1999). 5. The criteria for an evaluation in excess of 20 percent for residuals of laceration of the nerves, muscles, tendons and radial artery in the right arm on and after October 8, 1998, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8514 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A veteran's assertion of an increase in severity of a service-connected disorder constitutes a well-grounded claim requiring that VA fulfill the statutorily required duty to assist under 38 U.S.C.A. § 5107(a) (West 1991) because it is a new claim and not a reopened claim. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, the Board finds the veteran's claims to be well-grounded. Factual Background A May 1997 VA orthopedic examination report shows that the veteran complained of a dull pain in his right knee that was sharp after exertion. The examiner found no evidence of right knee swelling. The examiner observed two well-healed surgical scars and a nonsurgical well-healed scar. Right knee flexion was to 90 degrees with pain, and extension was to 5 degrees with pain. X-ray studies showed minimal osteoarthritis with osteochondritis dissecans.. The examiner diagnosed residuals of right knee surgery and osteochondritis disease. The veteran's right forearm was also examined in May 1997. The examination report shows that he complained of an off and on dull pain in the right forearm and occasional shooting pain. He also complained of tenderness with respect to a surgical scar on the right forearm. He had a right forearm scar in the ventral aspect. His right thumb could approximate the right fingers and the right fingers could approximate the median transverse fold. Although he complained of right hand weakness, he was able to use his right hand and write with it. The examiner observed that the veteran had normal dexterity of his right hand, but dropped objects grabbed by the right hand. He complained of right thumb, middle finger and index finger numbness. X-ray studies of his right hand showed marked deformity involving the right fifth metacarpal, compatible with an old healed fracture. The study was otherwise unremarkable. The examiner diagnosed residuals of a right forearm laceration. Paul A. Nitz, M.D., in a June 1998 evaluation of the veteran's right knee, indicates that he complained of knee swelling and soreness with episodes of locking. He sometimes experienced two to three episodes of locking per day. The physician observed that the veteran had two well-healed medial surgical scars and full range of motion in the right knee with some discomfort on forced extension and apprehension with any rotational motion of the knee. His ligaments were stable with normal Lachman's sign and normal tracking of the patella. There was no varus/valgus instability with stressing. The veteran did have some tenderness to palpation over the medial joint line. X-ray studies showed basically smooth congruent joint surfaces with a well-aligned knee joint. There was some mild joint space narrowing in the medial compartment and a lateral view showed an osseous loose piece. Dr. Nitz opined that the findings were consistent with meniscal versus articular cartilage injury of the medial compartment with probable early degenerative joint disease. He felt the veteran was a good candidate for arthroscopic knee surgery. A July 1998 Nova Care treatment record indicates that the veteran's chief complaint was that he was unable to do most fine motor coordination tasks with his right hand secondary to decreased sensation. He also complained of occasional stabbing pain. He described his pain as feeling like a toothache and rated it as a 2 on a scale of 1 to 10. The examiner noted that the veteran was right-hand dominant even though he indicated that he had learned to use his left hand more because of his right hand impairment. His right wrist dorsiflexion was from 0 to 50 degrees and palmar flexion was from 0 to 32 degrees. Right wrist ulnar deviation was from 0 to 30 degrees and radial deviation was from 0 to 8 degrees. Right forearm pronation was from 0 to 70 degrees and all other range of motion was evaluated as being within normal limits. His right hand range of motion was also evaluated as being within normal limits. The veteran's right hand grip and pinch strengths were diminished. The examiner described the veteran's gross manual muscle tests (MMT) for the right shoulder and elbow as good/good+ and for his wrist and hand as fair+/good. The assessment indicated that the veteran demonstrated decreased protective sensation as determined by the Semmes-Weinstein sensory evaluation and that he was unable to detect vibration on the right first, second and third digits. An October 1998 VA orthopedic examination report shows that the veteran had cut nerves, tendons and blood vessels in his right forearm which were repaired in service. He was right- hand dominant but stated he could not trust his right hand because of lack of feeling in it. His right elbow had 140 degrees of flexion, 0 degrees of extension, 90 degrees of supination and 90 degrees of pronation. The veteran's elbow flexors, such as biceps brachialis and triceps supinator and pronators, were graded 4.5/5 grade power when checked against gravity and strong resistance, while his biceps and triceps were graded 5/5 grade power. Examination of the veteran's right forearm revealed that, while his radial pulse was present, it was very weak distally at the wrist. Tinel's sign was positive at both elbows and also in his right wrist for the median nerve. The veteran had right hand numbness distal to his scar area in the median and radial nerve distributions, involving his right thumb, index and middle fingers. There was also slight numbness in his little finger. The veteran's right forearm motor functions were good and his prior tendon repair was in the physician's view "working nicely." His right wrist dorsiflexion was to 55 degrees, palmar flexion to 55 degrees, ulnar deviation to 45 degrees and radial deviation to 30 degrees. His muscle strength in the long flexors and long extensors was described as slightly weak and rated as 4.5/5. His intrinsic muscles were also slightly weaker, but he otherwise had good function of them. He could pinch things against his little, ring, middle and index fingers and his pinch was described as fairly strong. The veteran was able to make a fist and flex his long tendons and both profundae. His sublimis tendons and extensors were fairly strong for the fingers and for his wrist. There was no wasting in the thenar or hypothenar muscles. The veteran had 20 degrees of flexion at the PIP joints of the right thumb. His reflexes were present and normal. The examiner opined that although the veteran's right hand was somewhat weak and numb and that he dropped things, he had enough strength and function in the hand for ordinary use. The October 1998 VA examiner also evaluated the veteran's right knee. At that time, the veteran complained of right knee swelling and a "spongy" feeling after four or five hours of work. He also complained of right knee pain, locking and popping. Arthroscopic surgery had been recommended to remove loose bodies in his knee joint. The veteran's right knee flexion was to 115 degrees and his extension to 0 degrees. There was no collateral ligament instability on stress tests and the Lachman's sign was negative. Anterior and posterior drawer signs were also negative for any cruciate ligament instability. While his McMurray's sign was negative, it did produce some discomfort in the central part of his knee and there was slight tenderness over the left outer ligament with mild laxity. His muscle strength was evaluated as 5/5, with slight wasting of his right thigh. X-ray studies of the right knee showed evidence of osteochondritis dessiccans, along with a loose body in the central part of the knee. The examiner diagnosed status post operative right knee osteochondritis dessiccans and right central knee loose body. The examiner opined that the veteran's complaints of right knee locking and giving way were the result of his right knee loose body. Otherwise, the veteran also experienced some problems with pain, weakness, stiffness, and after the joint locked, swelling and fatigability. The examiner observed that when the loose body got caught between joint surfaces he was incapacitated until it moved away. Analysis The veteran contends that his right knee disability should be rated for ankylosis under Diagnostic Code 5256, rather than his current evaluation under Diagnostic Code 5257 for moderate impairment of the knee. The veteran also contends that his right forearm and hand disorder should be rated as injuries involving Muscle Groups VII and VIII. 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and these ratings are based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155. Right knee A 10 percent rating is for assignment for slight knee impairment from recurrent subluxation or lateral instability. A 20 percent evaluation is awarded for moderate impairment of the knee due to recurrent subluxation or lateral instability. A 30 percent evaluation is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5258, a 20 percent evaluation is awarded for semilunar dislocated cartilage with frequent episodes of "locking," pain and effusion into the joint. Removal of the semilunar cartilage that is accompanied by symptoms warrants a 10 percent evaluation under Diagnostic Code 5259. Other potentially applicable Diagnostic Codes, that provide higher evaluations, include: Code 5256, ankylosis of the knee; Code 5260, limitation of flexion of the leg; and Code 5261, limitation of extension of the leg. However, restrictions in flexion or extension of the veteran's right knee are not shown to warrant the assignment of more than the respective 10 or 20 percent ratings under Diagnostic Codes 5260 and 5261, and ankylosis of the right knee joint is not shown by any medical data on file. In this regard, it is noted that various medical examinations identify considerable movement in both flexion and extension maneuvers of the right lower extremity. In terms of rating the disability in question under Diagnostic Codes 5257, 5258, and 5259, the Board acknowledges the veteran's right knee complaints relative to pain and locking of the right knee. However, based on the objective findings adduced on VA examinations and that of Dr. Nitz, not more than a slight knee impairment based on recurrent subluxation or lateral instability is shown prior to June 15, 1998, and a greater than a moderate right knee impairment is not demonstrated on or after June 15, 1998, based on recurrent subluxation or lateral instability. As well, prior to June 15, 1998, there is not shown to be dislocation of right knee cartilage with frequent episodes of locking, pain, and effusion into the joint, given that the May 1997 examination by VA disclosed only scaring, diminished range of motion, and pain from a clinical standpoint. The more recent medical data show that the veteran's right knee impairment is manifested by tenderness, some limitation of motion on flexion with complaints of tenderness on forced extension, and mild laxity. No instability is indicated and there is shown to be good muscle strength. There is likewise no retained fluid in the knee and no swelling is reported. The veteran's principal problem appears to arise when his knee locks on him. While the October 1998 examiner noted that the veteran was incapacitated when his knee locked, such incapacity was noted to resolve when the loose bodies in the joint moved. Dr. Nitz noted that the veteran's knee locked two to three times a day. Therefore, the incapacitation addressed by the 1998 examiners appears to be for brief periods of time two to three times a day. Even this problem could be resolved apparently by arthroscopic surgery, but the veteran has declined this option. The Board finds the evidence is against a disability rating greater than 10 percent for right knee disability prior to June 15, 1998, and against the assignment of more than a 20 percent rating on and after June 15, 1998, under Diagnostic Code 5257 or 5258. Pain and locking of the right knee are contemplated under Code 5258 and it is noted that no medical professional is shown to have offered an opinion that more than slight knee impairment was present prior to June 15, 1998, or that more than a moderate knee impairment was in existence on or after June 15, 1998. In reaching its determination, the Board has considered the veteran's complaints of pain and functional loss and their effects on the veteran's earning capacity. See 38 C.F.R. §§ 4.1, 4.2, 4.41. The nature of the original disability has been reviewed, as well as the functional impairment of any existing pain and weakness. See generally DeLuca v. Brown, 8 Vet. App. 202 (1996); 38 C.F.R. §§ 4.10, 4.40, 4.45. The Board notes that complaints of pain are contemplated by the evaluation assigned under Diagnostic Code 5257. See Johnson v. Brown, 9 Vet. App. 7, 11 (1990). As well, the pain and weakness, as addressed by medical professionals in this case, were not found to be associated with additional limitation of motion of the veteran's right knee or leg. In particular, the October 1998 VA examiner found that the veteran experienced some problems with pain, weakness, and fatigability, but he did not associate such with additional limitation of motion. Therefore, the evidence does not show additional limitation of motion to an extent which would warrant a higher rating under 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. A precedent opinion from VA's Office of General Counsel holds that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; See Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (veteran is entitled to separate disability ratings for different manifestations of the same disability when the symptomatology of one manifestation is not duplicative or overlapping of the symptomatology of the other manifestations). In this case, degenerative arthritis of the right knee in association with limited motion is objectively shown both prior to and after June 15, 1998, and, as such, a separate 10 percent rating is assigned under Diagnostic Code 5003 for degenerative arthritis of the right knee, effective from the veteran's claim of September 25, 1996. Residuals of Laceration of the Right Forearm The residuals of the veteran's laceration of the right arm involving the nerves, muscles, tendons and radial artery in the right arm are currently evaluated as 20 percent disabling under Diagnostic Code "5308-8514." Such disorder was previously characterized as residuals of laceration of the right forearm and rated as 10 percent disabling, effective from September 1996 to October 1998, on the basis of Diagnostic Code 7804 (superficial scarring). Notwithstanding the veteran's contention that the disability in question should be rated as an injury to Muscle Groups VII and VIII, the medical data developed in connection with the current claim for increase fails to denote the existence of any muscle injury or residuals thereof. Moreover, no medical professional has offered an opinion during postservice years as to the presence of muscle damage related to the inservice laceration of the right forearm. Therefore, it would not be appropriate to rate the laceration residuals on the basis of muscle injury pursuant to 38 C.F.R. § 4.73, which the undersigned notes were revised by 62 Fed. Reg. 30235 et. seq. (1997), effective from July 3, 1997. The evidence both prior to and after October 8, 1998, does show that the veteran has numbness and slight weakness of his dominant right hand. A May 1997 VA examiner noted that the veteran had normal dexterity of his right hand, albeit with right forearm scarring, numbness, and tingling. Although the July 1998 private treatment record shows that the veteran had diminished grip and pinch strength and that his MMT's were described as fair+/good, the October 1998 VA examiner found that his motor functions were slightly weak although with good function. His pinch was also described as fairly strong. Moreover, the October 1998 examiner noted the veteran's slight weakness and diminished sensation, and although the veteran dropped things with his right hand, it was determined that he had enough strength and function in his hand for ordinary use. Therefore, based on the foregoing it is concluded that there was present mild incomplete paralysis of the radial nerve prior to October 8, 1998, such that a 20 percent rating is assignable for the period from September 25, 1996, to October 7, 1998. The record as of October 8, 1998, and thereafter, does not demonstrate the presence of more than slight incomplete paralysis of the radial nerve, or other impairment of function associated with the scarring of the right forearm, which would warrant the assignment of a rating in excess of 20 percent under any applicable rating criteria. Conclusion The Board finds that the veteran's disabilities are not so unusual or exceptional as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that the right knee and right forearm disabilities have not necessitated frequent periods of hospitalization and there is no objective evidence that they have resulted in a marked interference with his employment. As such, extraschedular evaluations of increased disability are not for assignment. The doctrine of reasonable doubt has been considered as to those claims herein denied. Because a preponderance of the evidence is against each such claim, such doctrine is not for application in this instance. ORDER An evaluation in excess of 10 percent for residuals of right knee surgery prior to June 15, 1998, is denied. An evaluation in excess of 20 percent for residuals of right knee surgery as of June 15, 1998, and thereafter, is denied. A separate 10 percent evaluation for degenerative arthritis of the right knee is granted, effective from September 25, 1996, subject to those provisions governing the payment of monetary benefits. A 20 percent evaluation for residuals of laceration of the nerves, muscles, tendons and radial artery of the right arm prior to October 8, 1998, is granted, subject to those provisions governing the payment of monetary benefits. An evaluation in excess of 20 percent for residuals of laceration of the nerves, muscles, tendons and radial artery of the right arm as of October 8, 1998, and thereafter, is denied. BRUCE KANNEE Member, Board of Veterans' Appeals