Citation Nr: 0000277 Decision Date: 01/05/00 Archive Date: 01/11/00 DOCKET NO. 96-40 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for a left knee disorder. 2. Entitlement to an initial evaluation in excess of 10 percent for a right knee disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The appellant had active duty for training from August 1991 to December 1991. A rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, in November 1995, granted service connection for a bilateral knee disorder, and assigned a noncompensable rating for each knee from the date of the appellant's original claim, August 17, 1995. The same rating action also assigned a 10 percent rating for the aggregate service-connected disability pursuant to 38 C.F.R. § 3.324 (1999). The appellant filed a timely appeal thereon. In a rating action in May 1997, the RO increased the ratings assigned for each knee to 10 percent from August 17, 1995. Since this is not the maximum assignable, pursuant to AB v. Brown, 6 Vet. App. 35 (1993), the issue would have remained on appeal. In any event, the appellant indicated that although appreciative of the actions, she was not fully satisfied with those ratings, and the case was forwarded to the Board of Veterans Appeals (the Board). The Board remanded the case in April 1998 for specific development of the evidence. In May 1999 the RO affirmed the 10 percent evaluations for the bilateral knee disabilities, and has returned the case to the Board for further appellate review. FINDINGS OF FACT 1. The left knee disability is productive of not more than slight impairment, with no evidence of moderate impairment or additional functional loss due to pain or other pathology. 2. The right knee disability is productive of not more than slight impairment, with no evidence of moderate impairment or additional functional loss due to pain or other pathology. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for a left knee disorder, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4,45, 4,59, 4.71a, Diagnostic Code 5262 (1999). 2. The criteria for an initial evaluation in excess of 10 percent for a right knee disorder have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Criteria 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board has also considered all regulatory provisions which are potentially applicable through the assertions and issues raised in the evidence of record as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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). As noted above, with regard to conclusions reached on any given medical issue to include a determination with regard to such things as degree or extent of functional impairment of a disability, VA cannot substitute its own judgment or opinion for that of a medical expert. See, i.e., Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). And the assignment of specific ratings must be made upon a review of the entire evidentiary record including thorough and comprehensive examinations that are representative of the entire clinical picture. Brown v. Brown, 5 Vet. App. 413 (1993). The United States Court of Veterans Appeals (Court) has also reviewed the method of evaluating increased ratings for musculoskeletal disorders in recent holdings. In particular, it has addressed the use of several sections of 38 C.F.R. Part 4. When a diagnostic code provides for compensation based solely upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999) must be considered, and the examination(s) upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by 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. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability. The intent of the rating schedule is to recognize painful motion with joints or periarticular pathology as productive of disability. It is the intention to recognize actually, painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of opposite undamaged joint. 38 C.F.R. § 4.59. The Court also has held that once degenerative arthritis is established by X-ray evidence, there are three circumstances under which compensation may be available for service- connected degenerative changes. However, when arthritis has not been established by X-rays, these criteria are technically inapplicable including reading the Codes in conjunction with 38 C.F.R. § 4.59 and 4.40, which relate to pain in the musculoskeletal system. Finally, the Court noted that "Diagnostic Code 5003 and 38 C.F.R. § 4.59 deem painful motion of a major joint or groups caused by degenerative arthritis that is established by X-ray evidence to be limited motion even though a range of motion may be possible beyond the point when pain sets in." Hicks v. Brown, 8 Vet. App. 417 (1995). When an unlisted condition is encountered, it may be rated without conjecture by analogy to another disability which has a closely related function. 38 C.F.R. § 4.20 (1999). Further, while a separate rating for pain is not required, the impact of pain must be considered in making the rating action. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). Under Diagnostic Code 5262 provided for impairment of the tibia and fibula, when there is nonunion with loose motion, requiring brace, 40 percent is warranted. When there is malunion with marked knee or ankle disability, 30 percent is warranted. With moderate knee or ankle disability, 20 percent is warranted. With slight knee or ankle disability, 10 percent is warranted. Under Diagnostic Code 5263, when there is genu recurvatum (acquired, traumatic, with weakness and insecurity in weight- bearing objectively demonstrated), 10 percent is warranted. Under Diagnostic Code 5256, provided for knee ankylosis, if extremely unfavorable, in flexion at an angle of 45 degrees or more, 60 percent is assignable; if in flexion between 20 degrees and 45 degrees, 50 percent is assignable; if in flexion between 10 degrees and 20 degrees, 40 percent is assignable. Under other provisions, when at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees, 30 percent is assignable. Under Diagnostic Code 5257 provided for other knee impairment, when there is recurrent subluxation or lateral instability which is severe, 30 percent is assignable; when moderate, 20 percent is assignable; or when slight, 10 percent is assignable. When there is cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint, 20 percent is assignable under Diagnostic Code 5258. When there is cartilage, semilunar, removal of, symptomatic, 10 percent is assignable under Diagnostic Code 5259. Under Diagnostic Code 5260, when there is limitation of flexion to 15 degrees, 30 percent is warranted. When flexion is limited to 30 degrees, 20 percent is warranted. When flexion is limited to 45 degrees, 10 percent is warranted. When flexion is limited to 60 degrees, zero percent is warranted. Under Diagnostic Code 5261, when there is limitation of leg extension to 45 degrees, 50 percent is warranted. When extension is limited to 30 degrees, 40 percent is warranted. When extension is limited to 20 degrees, 30 percent is warranted. When extension is limited to 15 degrees, 20 percent is warranted. When extension is limited to 10 degrees, 10 percent is warranted. When extension is limited to 5 degrees, zero percent is warranted. Under 38 C.F.R. § 4.71, Plate II, normal range of knee motion is identified as flexion and extension of 140 degrees to 0 degrees. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that 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 regular schedular standards. 38 C.F.R. § 3.321(b)(1). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Factual Background In service, the appellant complained of knee pain and swelling. Grind test was positive. Examination showed bilateral tenderness to palpation at the mid femoral condyle. Bone scan showed mild increased intake in the femoral and tibia sides of both knees and ankles. Diagnosis was retropatellar pain syndrome, bilateral, and genu recurvatum. Private treatment reports from September 1995 show complaints of same day swelling of both knees after prolonged repetitive knee activity. The appellant recalled having hurt her knees after a run in 1991. It was noted that in the past, the appellant had also had bilateral surgical procedures for heel spurs. On examination, there was minimal joint fluid in the knee and bilateral crepitation. The knee joints were stable to range of motion maneuvers. The physician assessed the problem as bilateral knee pain "? arthritis". The physician's statement prepared from memory at a later date was to the effect that X-rays had not shown dislocation or fractures, although the appellant had a somewhat more V- shaped patella than usual. A report of those X-rays was later submitted and was negative. A report of private orthopedic clinic care in July 1996 noted that the appellant was having marked swelling in her knees, with pain and discomfort. She denied locking or catching, but said that the pain was sometimes so severe as to wake her up at night. She had not recently taken any medications for the pain. On examination, there was no effusion of the knee joints. Medial and collateral ligaments were stable. There was no laxity of the anterior posterior cruciate ligaments or rotatory instability. McMurray's tests were negative. X- rays were negative. It was felt that she might have chondromalacia. She was given a prescription for Feldene and placed on an exercise program. A report of a visit to a private orthopedic surgeon in December 1996, in part for other complaints, shows the appellant was found to have hypermobility of both knees with some increased hyperextension and possible patellar dysfunction. She indicated that her heel spur surgeries had been in 1980, 1981 and 1989. Clinical findings included some crepitation of both knees and slight tenderness along the knee fat pads, which she said would swell. A physical therapy program was recommended. On VA examination in March 1997, the appellant stated that she recalled no specific injury to her knees, but recalled that after excessive running, she developed knee problems. Rheumatologic panel had been run privately and had been negative. She complained of aching, swelling and laxity in both knees. On examination, visually and by actual measurement, there was some slight loss of the distal quadriceps side of the right knee. The right knee looked somewhat more boggy than the left, and there was some loss of the patellar outline. Her range of motion of both knees was full. There was crepitus of the right knee, less so in the left knee. Both knees seemed to exhibit a positive maneuver to the drawer's signs. Bipatellar pain syndrome was diagnosed and magnetic resonance imaging (MRI) was scheduled. An MRI report is of record dated as having been read in April 1997 showing several views, all of which were normal. On VA examination in December 1998, the appellant reported that she continued to have knee problems. She was currently not working but going to school (although she had taken some time off to care for her mother), and had worked as a nurses aide for some 10 years. She had had a variety of other jobs as barmaid, waitress, and "care attendant" at a state hospital. She reported that she had not been seen often for her knees, although she had been to VA twice in the past, when she was given a brace and prescription which had since run out. On examination, the appellant complained of generalized pain around the knees, particularly anteriorly. Occasionally, the knee pain would radiate both proximally and distally a few inches above and below the knee. She also had a burning sensation in the anterior aspect of the knee, particularly when the knee was relaxed. She said she had no particular swelling although the knee felt puffy most of the time. She had had no true locking or giving way. She did have braces for both knees and would wear these when she was going to be up and about all day. She was not taking any physical therapy. The appellant indicated that she could walk without difficulty. She avoided squatting because she had difficulty recovering from that motion, and was able to go up and down a flight of stairs, but this would frequently bother her knees. She avoided running and could kneel but usually did not. She had been working at the local VA facility two days a week and was able to do that job. She was taking no medication for her knees. She said she did not like to stand in any given position for long. On examination, there was no swelling, warmth, tenderness or erythema about either knee. There was particularly no joint line tenderness. Both knees were stable in all planes, and all test signs were negative bilaterally. Specifically, there was no crepitation of either knee on range of motion. She had multiple scars including around the knees from other injuries in the past, including an auto injury some years before. Examination of the ankles and feet was negative. Reflexes and sensation were intact. There was a slight difference in the size of her right versus left leg circumferential measurements which the examiner could not fully explain. It was noted that an MRI in 1997 had been negative. X-rays taken in April 1998 were likewise normal. Diagnosis was questionable chondromalacia of the knees. It was noted that her physical examination was entirely within normal limits, including the lack of swelling, pain or crepitation, as well as a lack of heat, instability or X-ray or other evidence of abnormality. It was felt that based on her subjective complaints, she did not need a cane or crutch but should avoid doing those activities which caused her problems. A brace or support was also not felt to be necessary. The examining physician was requested to review the findings in January 1999 and respond to additional questions. Specifically, the physician reported that indeed he had previously reviewed the claims file, as well as the lengthy history of record, which he reiterated in detail. The examiner also concluded that the appellant's knee problems did not involve any muscle or nerve involvement; that there was no objective pathology on examination, but her subjective findings would suggest that she limit those activities which caused her difficulty; that there was no sign of skin changes, atrophy, or physical findings of any knee or other lower extremity abnormalities; and that there were no other overlapping factors which would impact the knee disability. He suggested that given the absence of abnormalities on MRI and X-rays, to completely eliminate the possibility of retropatellar pain syndrome, a bone scan might be undertaken. Analysis Initially, the Board finds that the appellant's claim for increased evaluations for her right and left knee disabilities is well-grounded within the meaning of 38 U.S.C.A. § 5107. That is, the claim is a plausible one. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); see also, Proscelle v. Derwinski, 2 Vet. App. 269 (1992). The Board is also satisfied that as a result of the April 1998 remand of the case to the RO for further development and adjudicatory actions, all relevant facts have been properly developed to their full extent and that VA has met its duty to assist. Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). In this regard, the Board notes that the VA examiner suggested accomplishement of a bone scan to rule out retropatellar pain syndrome in view of the appellant's symptomatic complaints. Such a bone scan was not accomplished and, in view of the examiner's overwhelming normal findings obtained on examination, there is no evidentiary basis upon which to predicate accomplishment of any further diagnostic studies. The Board notes that this case involves an appeal as to the initial rating, a 10 percent rating for each knee disability, effective from the day of the original claim in October 1995. In initial rating cases, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. However, in the case at hand, the Board finds, in view of the evidentiary record as constituted and elaborated upon earlier, a staged rating is not appropriate with regard to an increased evaluation for either knee. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the RO has determined that the most appropriate ratings assigned for both knees are pursuant to Diagnostic Code 5262. This is a Code provided for overall knee impairment, and is probably as appropriate as any in the rating of the herein concerned knee disabilities. The Board might find other criteria such as based on specific ranges of motion, etc., to also be appropriate, although there is no specific element of instability as such in either knee, albeit there is apparent pain and some allegations of slight swelling on occasion. However, regardless of which specific Code is used, the findings are in the aggregate, reflective of something of not more than of a relative slight nature, consistent with not more than a 10 percent evaluation whichever diagnostic code is applied. It is noted that a minimum compensable rating of 10 percent is assignable for a joint which is impacted by limited motion when there is arthritic change. In this case, however, it is noteworthy that repeated X-rays and an MRI have shown no degenerative changes of any sort in either knee. The clinical evidence does not show any sign of significant instability or subluxation, dislocations, locking, or any other similar findings, and the measured knee motions are normal, and never in excess of the relative minimum required for compensation under any applicable criteria. Accordingly, these clinical findings easily correspond at their very worst to something modestly more than a noncompensable rating and perhaps less than required a 10 percent rating for both knees. The RO resolved all doubt in the veteran's favor, as was entirely appropriate, and assigned the higher rating of 10 percent in accordance with 38 C.F.R. § 4.7. However, given the absence of objective clinical sign of more than minimal swelling on occasion, pain and slight limitation of motions, there is no clinical evidence to sustain an evaluation in excess of 10 percent for either right or left knee disorder, regardless of what specific schedular criteria may be applied. The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, 4.59. Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In this regard, the Board notes that the last VA examination of record shows the examiner considered functional loss due to pain and determined there was no evidence of skin changes or any other clinical objective pathology. The record is devoid of atrophy, incoordination, weakened movement, fatigability, etc. of clinical pathology upon which to predicate assignment of a higher rating for either knee under any of the pertinent diagnostic codes with application of 38 C.F.R. §§ 4.40, 4.45, 4.59. With respect to this claim, the Board observes that in light of Floyd v. Brown, 9 Vet. App. 88 (1996), the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all pertinent theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. In the veteran's case at hand, while the RO has provided the criteria for assignment of an extraschedular evaluation, it has not actually discussed them in light of the veteran's claim for increased evaluations for her bilateral knee disabilities. In the unusual case where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be assigned commensurate with impairment in the average earning capacity due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1). The appellant has worked in a variety of jobs over the years, and has also gone to school, but she has not shown that her knees cause her particular occupational impairment. She does not require medication, and the record is clear in showing that there is no marked interference in the veteran's employment due to her bilateral knee disabilities. The evidentiary record is also devoid of any need for hospitalization for treatment of either knee. Hence, no basis has been presented upon which to predicate referral of the veteran's case to the Under Secretary for Benefits or the Director of the VA Compensation and Pension Service for consideration of extraschedular evaluation for either knee. The evidentiary record does not support a grant of entitlement to an initial increased evaluation for the bilateral knee disabilities with application of all pertinent governing criteria. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for disability involving either knee. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial evaluation in excess of 10 percent assigned for a left knee disorder is denied. Entitlement to an initial evaluation in excess of 10 percent for a right knee disorder is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals