Citation Nr: 0002121 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 95-17 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES Entitlement to service connection for a low back disability secondary to service-connected right knee disability. Entitlement to service connection for a bilateral hip disability secondary to service-connected right knee disability. Entitlement to service connection for a left knee disability secondary to service-connected right knee disability. Entitlement to an increased evaluation for right knee disability, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from February 1964 to February 1966. This matter originally came before the Board of Veterans' Appeals (Board) on appeal of rating actions in January 1995 and March 1996 by the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). In March 1997 the Board remanded the issues set out on the title page for further development. These issues were again remanded by the Board in December 1998. This final decision will be limited to the veteran's claim for an increased evaluation for right knee disability. The remaining issues will be addressed in the remand section of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been requested by the originating agency. 2. The current manifestations of the veteran's right knee disability with degenerative joint disease include complaints of pain, including with motion; severe impairment of the right knee is not demonstrated and extension is to 0 degrees and flexion is to 145 degrees. CONCLUSIONS OF LAW 1. A disability evaluation in excess of 20 percent for a right knee disability is not for assignment. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § Part 4, Code 5257 (1999). 2. A separate 10 percent disability evaluation for degenerative joint disease of the right knee is for assignment. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § Part 4, Code 5003 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking an increased evaluation for his right knee disability. The Board finds that this claim is "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, and 4.42 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the service medical records and all other evidence of record pertaining to the history of the disability in question has been reviewed. Nothing in the historical record suggests that the current evidence of record is not adequate for rating purposes. Moreover, this case presents no evidentiary considerations which would warrant an exposition of the remote clinical history and findings pertaining to this disability. VA hospital records reflect that the veteran underwent an arthrotomy, both medial and lateral, of the right knee and a medial meniscectomy in May 1974. On VA examination in October 1974, the veteran had no limitation of motion of the right knee. There was point tenderness to palpation of the medial condyle of the right femur and the veteran experienced some pain in the region of the right knee on squatting. He walked with a slight limp on the right. In a November 1974 rating decision, service connection was granted for the postoperative residuals, medial and lateral meniscectomy, right knee, and a 10 percent disability evaluation was assigned. Another VA examination was conducted in April 1975 and the veteran's right knee revealed no swelling. There was tenderness medially and laterally over the postoperative scars. It was noted that there was a dressing where a neuroma had recently been removed. He walked well without a limp but stated that he had some difficulty climbing and walking for long periods. It was observed that he could do almost anything else that he wanted. In an April 1975 rating decision, the grant of service connection was revised to arthrotomy, medial and lateral, with excision of menisci and neuroma, right, and the disability evaluation was increased from 10 percent to 20 percent. An examination was conducted for the VA in July 1977. The findings included a well healed medial and lateral parapatellar incision of the right knee. The examiner related that he found no evidence of swelling of the knee and the veteran had no joint or ligamentous laxity. It was noted that the veteran, knowingly or unknowingly, exaggerated his tenderness on checking his anterior drawer sign and he appeared to be able to walk satisfactorily. It was noted that no evidence of severe muscle atrophy was seen. X-ray examination of the right knee revealed no significant bone or joint abnormalities. The examiner concluded that the veteran appeared to have a functional right lower extremity. Records from the Lakeland Orthopaedic Clinic show that the veteran was seen in September 1977 for complaints of pain in the right knee with swelling. On X-ray examination it was noted that there might be some early slight sclerosis of the articular margins, medially and laterally, indicating an early, mild degree of osteoarthritis. Following examination the impression was mild degenerative osteoarthritis, medial and lateral compartments, right knee, secondary to previous knee injury and bilateral meniscectomies. VA hospital records reflect that the veteran was admitted in July 1991 for complaints of right knee pain, popping and popliteal fullness. A right knee arthroscopy was performed and the diagnosis on discharge was degenerative joint disease of the right knee. Two weeks later it was reported that the pain had improved and the following month it was noted that the knee was doing well with range of motion from 0 degrees to 130 degrees and minimal effusion. In July 1994 the veteran initiated his claim for an increased evaluation for his right knee disability. VA outpatient treatment records show that when he was seen the previous month he reported constant right knee pain. On examination, the findings included full range of motion with crepitance. The medial collateral ligament, lateral collateral ligament, anterior cruciate ligament and posterior cruciate ligament were intact. There was no effusion. In August 1994 some right knee effusion was noted. In August 1994 a right knee arthroscopy with debridement and a right high tibial osteotomy were performed. The following month there was good range of motion of the right knee and no effusion. The veteran lacked 5 degrees of extension but could force his leg into full extension. At the time of a January 1995 VA orthopedic examination the veteran related that his right knee was worse since his August 1994 surgery with swelling. It was noted that he was using crutches and had been advised against full weight bearing on the right. He was wearing a double upright Velcro wrapping brace on the right with the dial set for full motion. The right knee had 10 degrees valgus at rest with 5 degrees valgus varus spring which was apparently painful. The range of motion was extension to 5 degrees and flexion to 125 degrees. There were healing incisional scars laterally on the right in addition to arthroscopy punctures. The impression included old service-connected right tibial fracture with traumatic arthritis and subsequent arthroscopy and probable partial arthroplasty with valgus angulation, some instability. Additional VA outpatient treatment records show that when the veteran was seen in April 1995 he reported severe right knee pain. On examination, the findings included range of motion from 0 degrees to 95 degrees and mild tenderness of the proximal tibia. The following month tenderness over the medial/lateral joint line was noted and the ligaments were found to have good stability. In April 1996, as the result of pain, metal removal of the right lateral tibial plateau plate was performed. In August 1996 the range of motion of the right knee was from 0 degrees to 110 degrees and Lachman's test was negative. There was no effusion or instability to varus/valgus stress. In February 1997 both medial and lateral joint line tests were positive, there was no varus/valgus instability, Lachman's test was negative and there was full range of motion with crepitance. Another VA orthopedic examination was conducted in June 1997. At this time the veteran's complaints included right knee pain. On examination, his gait was observed to be normal. The range of motion of the right knee was reported to be full extension and flexion to 140 degrees. He had slight retropatellar crepitation and had a 15 degree valgus deformity present. There was no right knee swelling or effusion and the ligaments were stable to varus and valgus stress in extension and 30 degrees of flexion. The anterior drawer test, posterior drawer test and Lachman's test were negative. X-ray examination of the right knee revealed changes indicative of osteoarthritis. The examiner also noted that there was no ligamentous instability or laxity, that weakness was difficult to ascertain and that fatigability was vague and could not be measured. VA outpatient treatment records indicated that the veteran complained of pain, including of the right knee, in February 1999. There was full range of motion of the right knee which was noted to be stable. A small loose body at the proximal lateral tibia was noted. X-ray examination revealed mild degenerative joint disease of the right knee. Another VA orthopedic examination of the veteran was conducted in March 1999. At this time he reported that he had some hypersensitivity in the right knee over the anterior medial aspect if touched. He had pain on the medial and lateral sides of the knee and he related that it felt like the metal was still in it. He used a cane in his right hand most of the time. It was observed that the veteran, using the cane, ambulated with a normal gait. The findings on examination of the right knee included full extension and 145 degrees of flexion. The right knee was larger than the left but there was no effusion. The veteran had slight quadriceps atrophy on the right side and mild retropatellar crepitation. The ligaments were stable to varus and valgus stress in extension and 30 degrees of flexion. The anterior drawer test, posterior drawer test and Lachman's test were negative. The impression included osteoarthritis of the right knee. The examining physician stated that the veteran had no measurable weakness of the right knee. After stating that coordination was a function of the central nervous system, not the knee, and that fatigue was a vague and subjective complaint which could not be measured, the examiner concluded that there no loss of motion of the right knee due to weakness, fatigue or incoordination. The physician, after noting that functional ability might be compromised temporarily during acute flare-ups, stated that it was not feasible to estimate an additional loss of motion due to pain on use or during a flare-up. Disability evaluations are based upon the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155. The veteran is currently being rated under Diagnostic Code 5257 for impairment of the knee with recurrent subluxation or lateral instability and a 20 percent disability evaluation is in effect. A 20 percent disability evaluation is for assignment under Diagnostic Code 5257 where there is moderate impairment of the knee with recurrent subluxation or lateral instability and a 30 percent disability evaluation is for assignment where the impairment is severe. A 30 percent disability evaluation may be assigned under Diagnostic Code 5260 where flexion is limited to 15 degrees or under Diagnostic Code 5261 where extension is limited to 20 degrees. In the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), 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 that consideration must be given to functional loss due to pain under 38 C.F.R. § 4.40 (1999) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (1999) when evaluating orthopedic disabilities. The Court found that the applicable Diagnostic Code in that case does not subsume 38 C.F.R. §§ 4.40 and 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 (1999) does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. The Court has stated, however, that a specific rating for pain is not required. Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). While the veteran contends that his service connected right knee disability is unstable and avers that an increased rating for his right knee disability is warranted under the provisions of Diagnostic Code 5257, applying the applicable case law, statutes and regulations to the particular facts of this case, it is apparent that an increased rating is not warranted. The recent VA examination showed the range of motion of the left knee was from 0 degrees to 145 degrees and neither the criteria for a higher rating under Diagnostic Code 5260 nor Diagnostic Code 5261 have been satisfied. There is no competent medical evidence, even with consideration of the 5 degrees of extension reported in January 1995 or the 95 degrees flexion reported in April 1995, that supports a finding that sufficient limitation of motion under any circumstances exists to warrant an evaluation greater than the 20 percent assigned. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra. The veteran has reported giving way but on recent examination the knee was stable with no swelling and the anterior drawer test, posterior drawer test and Lachman's test were negative. On the basis of the above analysis, a preponderance of the evidence is against a rating higher than the 20 percent currently assigned. Given the nature and severity of the pertinent symptomatology, the Board finds that the 20 percent evaluation currently assigned is appropriate. Severe impairment of the right knee is not demonstrated or approximated. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4, Code 5257. As the evidence is not in relative equipoise, the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107(b). It is herein noted that the veteran has developed degenerative arthritis of the right knee. Degenerative arthritis, under Diagnostic Code 5003, is rated based on limitation of motion of the affected joint under the appropriate diagnostic code. In a recent precedent opinion, the VA Office of General Counsel (OGC) held that a veteran who has arthritis and instability of the knee may be rated separately under Code 5003 and Code 5257. VAOPGCPREC 23-97. Subsequently, in VAOPGCPREC 9-98 it was held that if a musculoskeletal disability is rated under a specific diagnostic code that does not involve limitation of motion, and another diagnostic code based on limitation of motion may be applicable, the latter diagnostic code must be considered in light of 38 C.F.R. §§ 4.40, 4.45, and 4.59; Johnson v. Brown, 9 Vet. App. 7 (1996). A separate rating can be established if the disability meets the criteria for at least a 0 percent rating under either diagnostic code for limitation of motion or if there is arthritis and painful motion. Id.; VAOPGCPREC 9-98. As this veteran does experience painful right knee motion, meeting the requirements for a 10 percent disability evaluation under Diagnostic Code 5003, and his right knee disability is not compensably rated under a diagnostic code which is based, in whole or in part, on limitation of motion, a separate rating for the degenerative arthritis may be assigned. In reaching its decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). ORDER Entitlement to a separate 10 percent disability evaluation for degenerative joint disease of the right knee is granted and an increased evaluation for a right knee disability is denied. REMAND The Board, as noted above, previously remanded the veteran's claims for service connection. The physician who conducted the orthopedic examination following the Board's March 1997 remand did not proffer an opinion as to any possible etiologic relationship between the veteran's service- connected right knee disability and his left knee, bilateral hip and low back disabilities. The Board, in the remand of December 1998, again requested that the orthopedic examiner"proffer an opinion, with supporting analysis, as to whether it is as likely as not that the veteran's low back disability, bilateral hip disability or left knee disability was caused or aggravated by his service-connected right knee disability." (emphasis added). While the examiner related that he did not believe that either the low back, bilateral hip or left knee disability was caused or aggravated by the service-connected right knee disability, no supporting analysis was provided. In light of the above, and pursuant to Stegall v. West, 11 Vet. App. 268 (1998), the Board will remand the veteran's claims for service connection to the RO for the following action: 1. The RO should request from the Jackson, Mississippi, VA Medical Center, all of the veteran's outpatient treatment records dated subsequent to February 1999 as well as any inpatient treatment records dated subsequent to April 1996. 2. Upon completion of the above, the RO should schedule the veteran for examination of his left knee, hips, and low back by an orthopedist. The claims file, including a copy of this REMAND, should be made available to the examiner before the examination, for proper review of the medical history. The orthopedist is requested to review the veteran's medical history contained in the claims file, including the veteran's service medical records, private medical records and examination reports, and VA medical records and examination reports. The examination report is to reflect whether such a review of the claims file was made. The veteran should then be examined by this orthopedist. All indicated testing should be conducted and all clinical manifestations should be reported in detail. Based on the examination and a review of the record, the orthopedist should proffer an opinion, with supporting analysis, as to whether it is as likely as not that the veteran's low back disability, bilateral hip disability or left knee disability was caused or aggravated by his service- connected right knee disability. The degree of low back disability, bilateral hip disability or left knee disability which would not be present but for the service-connected right knee disability should be identified, if possible. 3. After the above development, the RO should review the veteran's claims file to determine that all of requested development has been properly completed. If it is determined that the requested development has not been properly completed or that additional development is required, appropriate action should be taken by the RO. 4. Following completion of the above, the RO is requested to again adjudicate the veteran's claims for service connection. If any of these claims should remain denied, the RO should provide the veteran and his representative with a supplemental statement of the case and they should be given the appropriate period of time in which to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. 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. HILARY L. GOODMAN Acting Member, Board of Veterans' Appeals