Citation Nr: 0007060 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-01 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased evaluation for a left knee disorder, currently evaluated as 20 percent disabling. 2. Entitlement to an increased evaluation for post-traumatic arthritis of the left knee, currently evaluated as 10 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.J. Bakke, Associate Counsel INTRODUCTION The veteran served on active duty from October 1972 to April 1983. This case comes to the Board of Veterans' Appeals (Board) on appeal of an October 1997 rating decision of the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA), which denied, inter alia, an increased evaluation for a left knee disorder. In March 1999, the Board remanded this case for further development, including a determination by the agency of original jurisdiction as to whether or not VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997) applied. In August 1999, the RO issued a rating decision in which it granted service connection for post-traumatic arthritis of the left knee, as secondary to the service-connected left knee disorder, and evaluated this condition as 10 percent disabling. It is evident, however, that traumatic arthritis was considered a part of the veteran's disability from the beginning, as traumatic arthritis was part of the disability description for which service connection was originally granted in December 1983. By this same rating decision, the RO denied a rating greater than 20 percent for the left knee disorder. FINDINGS OF FACT 1. The range of motion of the veteran's left knee is from zero degrees extension to 100 degrees flexion with x-ray evidence of severe post-traumatic osteoarthritis. 2. The veteran's left knee disability is otherwise manifested by additional disability of pain, crepitus, a limp favoring his left knee, and severe functional loss; hypertrophy of the knee joint but no findings of effusion; and normal medial and collateral ligaments, anterior and posterior cruciate ligaments, medial and lateral meniscus. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for limitation of motion due to arthritis of the left knee have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5010 (1999). 2. The criteria for a rating of 30 percent, and no greater, for other impairment of the left knee have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has presented a well-grounded claim for increased disability evaluation for his service-connected disabilities within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); cf. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where veteran asserted that his condition has worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well-grounded claim for an increased rating). In addition, the facts relevant to these issues on appeal have been properly developed and the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). 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. Service connection for the residuals of a left knee meniscectomy, with traumatic arthritis, was originally granted by the RO in a December 1983 rating decision. A 20 percent rating was granted on the basis of service medical records, which showed that the veteran injured his left knee and underwent left medial meniscectomy, arthrotomy and lateral meniscectomy with lateral retinacular release, and arthrotomy and partial synovectomy in service. A report of physical profile board proceedings shows that he was diagnosed with post-traumatic arthritis in the left knee in September 1981. This evaluation has been confirmed and continued to the present. As noted above, in the Introduction, the Board remanded this claim for further development in March 1999, including consideration of whether or not VAOPGCPREC 23-97 would apply. The RO determined that service connection should be awarded for that portion of the veteran's left knee symptomatology that may be attributed to post-traumatic arthritis, in accordance with the Chairman's Memorandum. Hence, a subsequent August 1999 rating decision granted a 10 percent evaluation under Diagnostic Code 5010 for post-traumatic arthritis for the left knee, based on a July 1999 VA examination report that reveals X-ray findings of severe post-traumatic osteoarthritis of the left knee and range of left knee joint motion from zero to 100 degrees. The examiner specifically noted that movement beyond 100 degrees elicited severe pain. Medial and collateral ligaments, anterior and posterior cruciate ligaments, and medial and lateral menisci were found to be normal. The examiner further noted that the veteran limped, favoring his left knee, and that he used both crutches and a cane to ambulate. By the same rating decision, the RO denied a rating higher than 20 percent under Diagnostic Code 5257 for the left knee disorder. VA examinations dated in May 1999 and July 1997 are also of record and show findings of normal alignment of the knees and patellae, and palpable and audible crepitus throughout the entire range of left knee joint movement. In July 1997, the examiner noted the left knee was hypertrophic. Neither report evidences findings of effusion, and both reports show the left knee to be stable. In May 1999, the examiner observed the veteran to manifest moderate functional loss, and, in July 1997, the examiner noted moderate incapacitation due to pain with the exception of occasional and complete severe incapacitation. VA outpatient records are also present in the claims file and show complaints of and treatment for left knee pain. In October 1997, these records show that total knee replacement was recommended. According to the regulations, arthritis due to trauma, substantiated by X-ray findings, shall be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriated diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. These 10 percent evaluations are 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, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. 4.71a, Code 5003. The veteran's service-connected post-traumatic arthritis of the left knee is manifested by a range of left knee joint motion shown to be from zero degrees extension to 100 degrees flexion. This is limitation of ranges of motion that is, otherwise, noncompensable under the appropriate diagnostic codes outlined above. 38 C.F.R. § 4.71a, Plate II. Hence, a 10 percent rating is warranted for this limitation of motion. A higher rating is not warranted unless range of knee joint motion is limited to five or more degrees extension, under Diagnostic Code 5261 or to 60 degrees or less flexion, under Diagnostic Code 5260. According to the regulations, a 20 percent rating under Diagnostic Code 5257 contemplates moderate impairment of the knee with recurrent subluxation or lateral instability. A 30 percent rating requires severe impairment. 38 C.F.R. § 4.71a, Code 5257. In June 1998 the veteran testified before the undersigned member of the Board that he experiences pain, stiffness, and swelling in his left knee. The veteran has not asserted, and the medical evidence does not show, that he experiences instability or dislocation of the knee joint. Nonetheless, the medical evidence establishes that the veteran experiences severe functional loss due to his service-connected left knee disorder, and that he has been told he will need a total knee replacement. Specifically, the VA examiner conducting the July 1999 examination diagnosed post-traumatic arthritis of the left knee with severe functional loss and, in May 1999, the examiner then concluded that the veteran manifested moderate functional loss. Finally, a report of VA examination dated in July 1997 reflects incapacitation due to pain that is moderate with the exception of occasional complete severe incapacitation. After consideration of the significant functional loss associated with these symptoms, the Board finds that the veteran's left knee disability is productive of severe other impairment. See 38 C.F.R. § 4.7 (1999); see also Johnson v. Brown, 11 Vet. App. (9 Vet. App. 7 (1996). Therefore, a 30 percent rating under Diagnostic Code 5257 is warranted. This combined 40 percent rating for the veteran's left lower extremity is the highest possible under the appropriate regulations. 38 C.F.R. § 4.68 (1999). In Esteban v. Brown, 6 Vet. App. 259 (1994) the Court held that the Board must consider the veteran's scars separately. Thus, in addition to considering whether increased evaluations are warranted for the service-connected left knee disabilities Diagnostic Codes 5010 and 5257, the Board will also analyze whether a compensable evaluation is warranted for the scar that is a residual of the resultant inservice surgeries, under Diagnostic Codes 7803, 7804, and 7805. The Schedule stipulates at Diagnostic Codes 7803 and 7804 that a scar can be rated as compensable only if it is "poorly nourished, with repeated ulceration," or if it is "tender and painful on objective demonstration." In July 1997, the examiner observed that the veteran's scars were well-healed, non-indurated, and non-erythematous. Similarly, in May 1999, the examiner observed the veteran's scars to be well-healed. The July 1999 examination report notes no findings concerning the scars. At Diagnostic Code 7805, the Schedule directs that "limitation of function" is rated according to the part of the body which is affected. The veteran has not alleged, and the medical evidence does not demonstrate, that any part of his body movement is limited by his scars. Thus, there is no such residual which can be considered under Diagnostic Code 7805. After consideration of the evidence, the Board finds that the criteria for separate 10 percent evaluations under Diagnostic Code 7803, 7804, and 7805 are not met. The foregoing does not preclude the grant of a higher evaluation for the veteran's left knee disabilities, however. In exceptional cases where schedular evaluations are found to be inadequate, consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities" is made. 38 C.F.R. § 3.321(b)(1) (1999). 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 the regular schedular standards. Id. The Board finds no evidence of an exceptional disability picture in this case. The veteran has not recently required hospitalization for his left knee disabilities or the residual scars, nor is it shown that he currently requires frequent treatment for these conditions. In addition, the Board cannot find medical evidence that the impairment resulting from the service-connected left knee disabilities and resultant scars, alone, interfere markedly with the veteran's employment. Rather, for the reasons noted above, the Board concludes that the impairment resulting from the left knee disorder and post-traumatic arthritis, left knee, is adequately compensated by the 30 percent schedular evaluation under Diagnostic Code 5257, and the separate 10 percent schedular evaluation granted under Diagnostic Code 5010. Therefore, extraschedular consideration under 38 C.F.R. § 3.321(b) (1999) is not warranted in this case. See also Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER A 30 percent evaluation for left knee disorder is granted, subject to the laws and regulations governing the award of monetary benefits. A rating greater than 10 percent for post-traumatic arthritis of the left knee is denied CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals