Citation Nr: 0004757 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 92-07 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased evaluation for degenerative arthritis of the right knee with residuals of a lateral meniscectomy, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for hallux valgus of the left foot with arthritis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from June 1971 to June 1975 and from June 1977 to August 1979. By a decision dated in December 1989, the Board of Veterans' Appeals (Board) denied the veteran's appeal for a rating in excess of 10 percent for a right knee disability and for a compensable rating for a left foot disability. This appeal arises from an April 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board remanded the veteran's claims to the RO in May 1993. In a July 1994 decision the RO increased the rating for the left foot disorder to 10 percent under Diagnostic Code 5280 effective from October 1990. The RO returned the case to the Board and in a January 1996 decision the Board denied the veteran's request to reopen his claim for service connection for a left knee disability and denied service connection for an acquired psychiatric disorder and a back disability. The Board remanded the veteran's claims for increased ratings for a right knee disability and hallux valgus of the left foot, and a claim for a temporary total rating based on a period of convalescence. The RO in a September 1999 rating action granted a temporary total rating for a period of convalescence from September 18, 1990, to November 1, 1990. The veteran was informed of this decision and has not indicated disagreement with the decision. The September 1999 RO decision has resulted in there being no case or controversy as to that issue. Therefore, it is moot. Aronson v. Brown, 7 Vet. App. 153, 155 (1994). FINDINGS OF FACT 1. The veteran underwent a lateral meniscectomy of his right knee in 1975; his right knee disability is currently principally manifested by X-ray findings of degenerative changes; objective clinical findings are negative for limitation of motion, instability, or subluxation. 2. The medical examiners of record have found the veteran's complaints of pain and functional impairment of the right knee not to be credible or supported by adequate pathology. 3. The hallux valgus of the veteran's left foot has been corrected by an osteotomy of the distal first metatarsal. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for degenerative arthritis of the right knee with residuals of a lateral meniscectomy have not been met. 38 U.S.C.A. § 1155 (West 1991):38 C.F.R. §§ 4.40, 4.45, 4.71, Diagnostic Code 5010 (1999). 2. The criteria for an evaluation in excess of 10 percent for hallux valgus of the left foot with arthritis have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Code 5280 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, an allegation of increased disability is sufficient to establish a well-grounded claim when the veteran is seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is satisfied that all relevant facts have been properly developed. No further assistance is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). Pertinent Laws and Regulations. In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2. 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The provisions of 38 C.F.R. § 4.1 require that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition. The provisions of 38 C.F.R. § 4.2 require that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory, and prognostic data required for ordinary medical classification, a description of the effects of the disability upon the person's ordinary activity. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body. Functional loss may be due to pain, supported by adequate pathology, or 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. Inquiry must also made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognized actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. 38 C.F.R. § 4.59. Other applicable, general policy considerations provide for resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3, and where there is a question as to which or two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7. Under Diagnostic Code 5257 a 20 percent rating is warranted when there is recurrent subluxation or lateral instability resulting in moderate impairment of the knee. A 30 percent evaluation will be assigned when the impairment is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The General Counsel for VA, in a precedent opinion dated July 1, 1997, (VAOPGCPREC 23-97) held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. When the knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion which at least meets the criteria for a zero-percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. The General Counsel clarified that opinion in VAOPGCPREC 9-98. VA General Counsel, in VAOPGCPREC 9-98, held that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. See also Degmetich v. Brown, 104 F. 3d 1328, 1331 (Fed Cir 1997). Where additional disability is shown, a veteran rated under 5257 can also be compensated under 5003 and vice versa. Arthritis due to trauma, substantiated by X-rays findings is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. 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. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion rate as below: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations a 20 percent evaluation is assigned. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups a 10 percent evaluation is assigned. 38 C.F.R. § 4.71, Diagnostic Code 5003. The definition of major and minor joints is set out in 38 C.F.R. § 4.45. The knee is considered a major joint. The interphalangeal, metatarsal and tarsal joints of the lower extremities are considered groups of minor joints ratable on a parity with major joints. 38 C.F.R. § 4.45(f). Diagnostic Code 5260 provides for limitation of flexion of the leg. Where flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. Diagnostic Code 5260. Diagnostic Code 5261 provides for limitation of the extension of the leg. When there is limitation of extension of the leg to 5 degrees, a zero percent rating is assigned; when the limitation is to 10 degrees, a 10 percent rating is assignable; when the limitation is to 15 degrees, 20 percent is assigned; when extension is limited to 20 degrees, 30 percent is assigned; when extension is limited to 30 degrees, 40 percent is assigned; and when it is limited to 45 degrees, 50 percent is assigned. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (1999). Severe unilateral hallux valgus warrants a 10 percent rating if the extent of disability is equivalent to amputation of the great toe. A 10 percent rating is also warranted for postoperative unilateral hallux valgus with resection of the metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280 (1999). In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1999). Factual Background. The service medical records reflect that an arthrogram on the veteran's right knee in November 1974 showed a tear of the lateral meniscus. In January 1975 the veteran underwent a lateral meniscectomy of his right knee. In December 1988 an arthrogram of the veteran's right knee revealed that the visualized portions of the medial and lateral menisci were intact without evidence of definite tear or degeneration. The joint capsule was of normal configuration. The articular cartilages were of uniform thickness and smooth. The cruciate ligaments were intact. There is no evidence for a popliteal cyst or other synovial cyst extending from the joint capsule. The impression was negative right knee arthrogram without definite evidence of a meniscal tear or of degeneration. A VA podiatry consult was performed in April 1989. The veteran complained of left foot pain. The impression was hallux valgus of the left foot. May 1989 VA records reveal that the veteran underwent an Austin bunionectomy of the left hallux. In September 1990 a VA arthroscopy was performed. The right patella femoral joint showed no pathology, medially. The meniscus and the cartilage of the tibia and femur were well preserved. The anterior cruciate ligament was intact, laterally. The lateral meniscus was not loose. There were no tears. It had been previously trimmed back and was very stable. The tibia had grade III-IV chondromalacia involving the articular surface. The femur had a flap tear of the cartilage in the area of the chondromalacia that had been debrided and removed. The diagnosis was chondromalacia of the lateral compartment of both the tibia and femur. A report of VA orthopedic examination dated in June 1993 reflects that the veteran reported that he had just spent the past six months in jail. He had been using crutches since he came off a wheelchair which he had been using on and off after he had surgery on both knees in September 1990. The physician's impressions included the following: (1) minor lateral compartment post traumatic osteoarthritis, right knee, secondary to lateral meniscus tear and meniscectomy; and (2) healed first metatarsal osteotomy, left foot, with correction of hallux valgus. The physician commented that the veteran clearly had a serious psychiatric disorder associated with pseudoparalysis of the lower extremities. In June 1993 a VA psychiatric examiner noted that in 1991 the veteran was unable to support his weight or walk at all and procured a wheelchair for himself without prescription, though there were no objective findings of change in muscle bulk, reflex loss, or sensory loss. He had had arthroscopies of his knees and walked with crutches. He had spent the last six months in jail for the charge of an annoying phone call that he denied. Despite an arrest for possession of marijuana, he claimed no history of alcohol or other substance abuse. He repeatedly spoke of being victimized. The assessments included probable somatoform pain disorder with marked superimposed malingering. In his comment following the diagnosis the physician stated that the veteran's physical complaints were unsupported by sufficient physical findings and repeated requests for secondary gain strongly suggested a component of malingering. A VA orthopedic examination was conducted in July 1996. The examiner noted that the veteran had had bunion surgery on his left foot and that there was a healed two inch incision medially over the great toe of the left foot without any deformity or loss of mobility. X-ray examination of the left foot resulted in an impression of osteotomy and two metallic screws at the level of the first distal metatarsal. The examiner noted that the veteran had been in a wheelchair for 5 years and that he claimed that he could not walk because of his back, his knees, and his foot. The examiner commented that there was no atrophy of the veteran's thigh or calf muscles, and that the veteran "appeared during the examination to be voluntarily making it difficult for himself to perform any activities with his lower extremities." The examiner provided the following diagnoses: 1. The diagnosis in this gentleman is very difficult to make. He, in my opinion, is either a paraplegic or a hysteric. My inclination, based on his responses and his movements during my examination leaned toward hysteria. However, I do believe that a complete neurologic work-up is in order to determine accurately once and for all why this guy is in a wheelchair. 2. With regard to his knees, he is status post arthroscopic surgery, right and left knee with minimal degenerative joint disease. 3. Left foot is status post bunion surgery for hallux valgus. VA examination of the veteran's right knee on November 22, 1996, revealed no swelling, no deformity, and no lateral instability. Passive range of motion was from 0 degrees extension to 150 degrees flexion. Active range of motion was from 0 to 140 degrees. This examination resulted in a diagnosis of no objective clinical findings as to the right knee on clinical examination. The report of another VA examination for disability evaluation purposes reflects that the veteran was examined on November 25, 1996, and that the veteran reported that his knee problems were so severe that he used Canadian type crutches around his house and a wheelchair when he went outside. The veteran reported that he continued to experience pain in his left foot, especially under the first metatarsal head. Examination revealed range of motion of the knees to be from 130 degrees of flexion to zero degrees of extension. No gross instability was present. There was a very mild effusion on the right side. Examination of the left foot revealed a well healed dorsal incision over the left great toe metacarpal phalangeal joint. X-rays of the right knee showed some very mild joint line narrowing and a little bit of spurring laterally. X-rays of the left foot showed signs of a healed osteotomy of the first metatarsal with two retained small screws in place. The joint appeared to be satisfactory with reasonable alignment. The examiner commented that the veteran did have some atrophy on the right side compared to the left. Strength seemed to be intact. The examiner recommended a neurologic examination to rule out any specific neurologic process. The examiner stated that he felt that the veteran did have a real problem with his knee and with his left foot, but that the symptomatology reported seemed to be somewhat out of proportion to the clinical findings. In August 1998 the RO arranged for the veteran to be accorded an orthopedic examination for disability evaluation purposes by a private physician. The report of this examination reflects that the veteran stated he was unable to walk or stand secondary to pain in the knees and inability to raise his legs. Examination of the knees revealed range of motion was from 0 to 140 degrees. There was no active flexion or extension of the right knee. There was a slight isometric contraction of the right quadriceps muscle. There was no medial or lateral laxity. Lachman test was negative. Anterior and posterior drawer signs were negative. McMurray test was negative. There were occasional complaints of pain by the veteran upon motion of the knees. Examination of the feet revealed that passive motion of the toes was normal and muscle strength in the toes was 4/5. There was no plantar callosity. There was no other deformity, instability or crepitation of the joints. Resistive forces against dorsiflexion, plantar flexion, inversion and eversion caused no pain. X-rays of the left foot revealed a healed osteotomy of the distal first metatarsal with good alignment and correction. There were normal joint spaces of the metatarsal phalangeal joint of the first through fifth toes without significant degenerative changes. X-rays of the right knee revealed normal alignment. There was "beaking of the tibial spine." There were marginal osteophytes in the medial and lateral areas, which were mild. Diagnoses included the following: bilateral knee degenerative joint disease; status post left first metatarsal osteotomy; and "weakness of the lower extremity muscles, not relevant to the patient's degenerative changes." In his discussion the examiner stated that examination of the lower extremities revealed generalized weakness, mostly in the right hip, which was far beyond what one would expect to be caused by degeneration of the knees or surgery of the left foot. The reflexes were symmetrical. There was no gross atrophy or signs of ongoing inflammatory process of contracture. With regard to standing and walking, the VA examiner stated that he was unable to comment on this due to the fact that despite having good muscle tone and bulk, there was generalized weakness of the lower extremities. The orthopedic examiner stated that a neurologic evaluation might be beneficial in delineating the origin of the weakness. The RO arranged for the veteran to be accorded a neurological evaluation by a private physician in January 1999. The report included a complete history, review of medical records, and neurological examination. Subsequent to the neurological evaluation an electromyography was performed. No evidence of denervation was found. Nerve conduction studies of the ankles and feet were normal. The veteran was poorly cooperative with the examination. A magnetic resonance imaging of the right knee was also performed in January 1999. The impressions were as follows: (1) minimal medial and mild lateral compartment arthrosis; (2) low signal stranding within Hoffa's fat pad compatible with postoperative fibrosis, (3) marked attenuation of the lateral meniscus which may reflect a surgical change or bucket-handle tear; and (4) moderate knee effusion. The neurologist stated that on the basis of the veteran's subjective complaints, he felt that it was more likely than not that the weakness in the lower extremities was present on a functional basis and not a neurological basis. In that regard the examiner noted that there was no atrophy of the lower extremities and reflexes were well preserved. There were no sensory findings on examination. He stated that from a neurological standpoint, subjective complaints, overall, appeared to be out of proportion to objective findings. Analysis. The veteran is seeking increased ratings for his service-connected right knee and left foot disabilities. He has asserted that they are of such severity that he must use crutches and a wheelchair. The Board remanded the veteran's case to the RO in January 1996 for the veteran to be scheduled for examination to determine the degree of functional impairment caused by the service-connected disabilities. The veteran's right knee disorder is currently rated as 10 percent disabling. A higher evaluation would require either evidence of recurrent subluxation, lateral instability, limitation of motion or functional impairment due to pain. The examiners have not found any objective basis for the veteran's use of a wheelchair and crutches. There is no orthopedic or neurological basis related to the right knee or left foot for the veteran to use a wheelchair or crutches. The examinations for disability evaluation purposes require cooperativeness on the part of the veteran to perform the required motions and to report any resulting pain or discomfort. A review of the record has raised questions as to the credibility of the veteran's subjective complaints of pain and his cooperativeness during examinations. For that reason the Board has focused on the objective findings and opinions of medical professionals who have examined the veteran. The veteran has undergone surgeries on his right knee and left foot. Clearly, the veteran has had real problems with his right knee and left foot. However, an orthopedic examiner and a psychiatric examiner in June 1993 both concluded that the veteran's symptoms were not supported by objective findings. The orthopedic examiner noted pseudoparalysis of the lower extremities and the psychiatric examiner noted that there was a component of malingering. An orthopedic examiner in July 1996 noted that the veteran appeared to be voluntarily making it difficult for himself to perform any activities with his lower extremities; hysteria was noted. Examination on November 22, 1996, revealed no objective clinical findings as to the right knee. Another examination a few days later reflects that the physician concluded that the veteran's symptomatology seemed to be out of proportion to the clinical findings. The RO thereafter arranged for the veteran to be examined on a fee basis by both an orthopedist and a neurologist. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") held, in Hicks v. Brown, 8 Vet. App. 417 (1995), that any examination report that addresses the issue of functional loss due to pain must be adequate for rating purposes. Based on a careful review of the examination reports, the Board has determined that the August 1998 orthopedic examination and the January 1999 neurologic examination are adequate for rating purposes and support a conclusion that the veteran's complaints of pain and his use of a wheelchair and crutches are the result of exaggeration of his symptoms. The orthopedic examiner noted generalized weakness of the lower extremities but concluded that the weakness was "not relevant to the patient's degenerative changes." The orthopedist noted good muscle tone and bulk and concluded that a neurologic evaluation was needed to determine the origin of the weakness. A subsequent neurological evaluation in January 1999 resulted in a conclusion that the weakness in the lower extremities was present on a functional basis and not a neurological basis. The neurologist stated that there was no atrophy of the lower extremities and that reflexes were well preserved. The neurologist concluded that the veteran's complaints appeared to be out of proportion to objective findings. Examinations over the years have revealed no objective evidence of instability or recurrent subluxation. Thus, a separate rating under Diagnostic Code 5257 is not warranted. The veteran's complaints of pain are not supported by adequate pathology. For that reason the Board has determined that the veteran's current rating of 10 percent based on X- ray findings of degenerative changes in the knee under Diagnostic Code 5003 is sufficient to compensate him for his service-connected right knee disability. As to the foot, the maximum schedular evaluation for hallux valgus of the foot has been assigned. There is no other Diagnostic Code under which hallux valgus can be evaluated. In order for a higher evaluation to be assigned the veteran must demonstrate that the disability is unusual and that an extraschedular rating should be assigned. The evidence does not support that conclusion. Although the veteran has indicated he must use a wheelchair and crutches, the examinations have not revealed any pathology of the left foot which would require such assistive devices. Referral for an extraschedular evaluation is not warranted in the case. In reaching this decision the Board considered the veteran's complaints of pain. Notably, however, the criteria under Diagnostic Code 5280 are not predicated on limitation of motion. Hence, the provisions of 38 C.F.R. §§ 4.40 and 4.45 are not for application. Cf. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). In any event, as noted above, the veteran is already in receipt of the maximum schedular rating provided by Diagnostic Code 5280. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for both the right knee disability and the left foot disability. Accordingly, the benefit of the doubt doctrine is not applicable in this case. Cf. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An evaluation in excess of 10 percent for the right knee disability is denied. An evaluation in excess of 10 percent for the left foot disability is denied. Gary L. Gick Member, Board of Veterans' Appeals