Citation Nr: 0006193 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 98-03 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Determination of a proper initial rating for lumbosacral strain with fracture of the coccyx and degenerative disc disease, currently evaluated as 20 percent disabling. 2. Determination of a proper initial rating for residuals of trauma to the left knee, currently evaluated as 20 percent disabling. 3. Determination of a proper initial rating for residuals of trauma to the right knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Edward Walls, Associate Counsel INTRODUCTION The veteran served on active duty from September 1979 to July 1990. His appeal comes before the Board of Veterans' Appeals (Board) from a January 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The veteran's fractured coccyx was originally service connected at a noncompensable evaluation in January 1997. However, the RO recharacterized the lumbosacral strain issue by an August 1998 Supplemental Statement of the Case to include fracture of the coccyx and degenerative disc disease. The veteran's rating for lumbosacral strain was increased from 10 percent to 20 percent at that time. The veteran has claimed that he fractured his right elbow during a fall caused by weakness in his service-connected left knee. This matter is referred to the RO for proper adjudication. The RO originally rated the veteran's residuals of trauma to the left knee under Diagnostic Code 5257 and assigned a 10 percent evaluation. However, the RO changed the diagnostic code under which he was rated by a Supplemental Statement of the Case issued in August 1998, and his evaluation for residuals of left knee trauma was increased to 20 percent under Diagnostic Code 5258. This rating was made retroactive to the original date of the veteran's claim. The veteran's evaluation for residuals of right knee trauma was also increased from a noncompensable evaluation to 10 percent disabling. His overall disability evaluation was increased from 20 percent to 50 percent. However, this increase is not considered a full grant of benefits on appeal, and his case is now properly before the Board. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran's lumbosacral strain is not severe; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of joint changes, or some of the above with abnormal mobility on forced motion. 3. His left knee has full range of motion, but the residuals of trauma are manifest by pain throughout the range of motion. 4. His right knee does not show more than slight recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for lumbosacral strain with fracture of the coccyx and degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5293, 5295 (1999). 2. The criteria for a proper initial rating in excess of 20 percent for residuals of trauma to the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (1999). 3. The criteria for a proper initial rating in excess of 10 percent for residuals of trauma to the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran stated that although he tries to have a high tolerance for pain, his back hurts constantly and that pain medication has not effectively alleviated this pain. The veteran reported that he must put a pillow between his knees in order for him to sleep properly. He said that although he could completely straighten out the left leg and bend it back at least 45 degrees, he had a lot of pain with movement. In fact, he has fallen on several occasions because his knee wobbled, once at work and once at K-Mart. He indicated that the left knee feels unstable and hurts constantly, and that his left knee is far worse than his right knee, although apparently pain medication helps. As a preliminary matter, the Board finds that the veteran's claims are plausible and capable of substantiation and therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). When a veteran submits a well- grounded claim, VA must assist him in developing facts pertinent to that claim. The veteran has been afforded multiple examinations and an RO hearing in August 1998, and the VA has obtained treatment records from both VA and private hospitals. Thus, the Board is satisfied that all available relevant evidence has been obtained regarding the claims, and no further assistance to the veteran is required pursuant to 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disabilities. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board concludes that this case presents no evidentiary considerations, except as noted below, which warrant an exposition of the remote clinical history and findings pertaining to the disabilities at issue. Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned evaluation is based, as far as practicable, on the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Regulations require that, where there is a question as to which of two evaluations is to 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. Furthermore, because this is an initial rating, the rule from Francisco v. Brown, 7 Vet. App. 55 (1994), that the present level of disability is of primary importance, is not applicable. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Therefore, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as staged ratings. Id. at 125. 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40; see also DeLuca v. Brown, 8 Vet.App. 202 (1995) (holding that when a veteran is rated under a code that contemplates limitation of range of motion, 38 C.F.R. §§ 4.40 and 4.45 must be considered, and any additional range of motion loss due to pain, weakened movement, excess fatigability, or incoordination must be noted). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and, (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45. Lumbosacral strain The veteran's lumbosacral strain was service connected in January 1997 and it is currently evaluated as 20 percent disabling under Diagnostic Code (DC) 5295. As stated above, fracture of the coccyx and degenerative disc disease have been included by the RO as being part of the service- connected low back disorder. DC 5295 provides that a 20 percent evaluation is warranted for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent evaluation is warranted for severe lumbosacral strain; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295. According to an August 1995 VA radiologic consultation report, there was a wedge compression fracture of the L1 vertebral body with degenerative narrowing of T12-L1 disc space. Osteophytosis was noted at multiple lower lumbar levels. The remaining vertebral bodies and disc spaces were maintained. On physical examination, the examiner noted that there were no muscle spasms. He reported there was a slight increase in the normal lumbar lordosis. The veteran could forward bend to 90 degrees, and he could backward bend to 20 degrees. Lateral bending was to 45 degrees in each direction, and rotation was 35 degrees. The examiner diagnosed chronic lumbosacral strain. An X-ray of the veteran's lumbar spine taken in January 1998 revealed moderate compression of L1, which appeared old, based on osteophyte formation. Mild degenerative disc disease was present throughout the lumbar spine with posterior narrowing and the spine's alignment was intact. The examiner indicated that there was evidence of an old L1 compression fracture. According to an April 1998 VA examination report, the veteran was medicated with Diclofenac and ibuprofen for his spine. He had flare up of his back pain every other weekend. The veteran reported that the pain generally lasted for about one week, so that he usually had pain on alternating weeks. The examiner indicated that when the veteran had a flare-up of this pain, he did not have any additional limitations on his range of motion; however, he did have some functional loss of flexibility. The veteran did not need crutches, braces, or a cane for his back pain, and the examiner reported that there were no functional problems due to the spine disease. Rather, the veteran had full range of motion in his spine, which was not painful on motion. There was no additional limitation during a flare. The veteran did have some diffuse lower back muscle spasm. The examiner diagnosed chronic low back pain probably secondary to his old compression fracture at T-1. Considering this clinical record, the Board concludes that an evaluation in excess of 20 percent is not warranted for lumbosacral strain with fractured coccyx and degenerative disc disease. Although there is some muscle spasm to warrant the 20 percent evaluation, there has been no showing that the veteran's whole spine lists to the opposite side or positive Goldthwaite's sign. Rather, a recent X-ray has shown that the veteran's spine was aligned as of January 1998. The clinical evidence is clear that the veteran does not have marked limitation of forward bending in standing position, as he was able to forward bend to 90 degrees in August 1995. The medical evidence of record does not show any loss of lateral motion with osteo-arthritic changes. Instead, lateral bending was 45 degrees in both directions in August 1995, affirmatively showing he does not have loss of lateral motion. An X-ray of the back in January 1998 showed mild degenerative disc disease, but there was no evidence of a narrowing of joint space or evidence of abnormal mobility with forced motion. As such, the Board must conclude that the 20 percent evaluation adequately accounts for the veteran's low back symptomatology under DC 5295, and an increased evaluation is not warranted given the current manifestations of his service-connected disability. In reaching its decision, the Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations (1999), regardless of whether they were raised by the veteran. In particular, the Board has weighed the provisions of DC 5293 for intervertebral disc syndrome. A 20 percent evaluation is warranted for moderate intervertebral disc syndrome; recurring attacks. A 40 percent evaluation is warranted for severe intervertebral disc syndrome; recurring attacks, with intermittent relief. A 60 percent evaluation is warranted for pronounced intervertebral disc syndrome; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. 38 C.F.R. § 4.71a, DC 5293. Although DC 5293 has been considered, the Board notes that the veteran's back disability has never been characterized as intervertebral disc syndrome. Even if it had ever been characterized as such, an evaluation in excess of 20 percent would not be warranted because the neuropathy reflected by the clinical record is not productive of a higher evaluation. The record contains no evidence of radicular neuropathy such as sensory loss in his extremities, shooting pains, or tingling. The veteran's symptomatology is predominately manifest by pain on motion, but there has been no showing of functional impairment as a result of pain on motion. Considering the lack of medical evidence that the veteran has characteristic neuropathy reflective of intervertebral disc disease, an evaluation in excess of 20 percent would not be warranted under DC 5293. The Board has also considered the provisions of 38 C.F.R. § 4.40 and 4.45, but the clinical findings are not reflective of additional disability due to pain or weakened movement associated with the service-connected disability at issue. Furthermore, the record does not present an approximate balance of positive and negative evidence with respect to an evaluation in excess of 20 percent as to permit application of the benefit-of-the-doubt rule. Residuals of trauma to the left and right knees The RO service connected the veteran's residuals of trauma to the right knee in January 1997 and assigned a 10 percent evaluation under DC 5257. Under DC 5257, slight recurrent subluxation or lateral instability warrant a 10 percent evaluation. Moderate recurrent subluxation or lateral instability warrant a 20 percent evaluation and severe recurrent subluxation or lateral instability warrant a 30 percent evaluation. 38 C.F.R. § 4.71a, DC 5257. The veteran's evaluation for residuals of trauma to left knee was increased to 20 percent following an arthroscopy procedure performed in March 1998, and the assignment was retroactive to the date of his original claim. As discussed above, the assigned diagnostic code was changed from DC 5257 to DC 5258. Under DC 5258, a 20 percent evaluation is warranted for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. According to an August 1995 radiologic consultation report, the veteran reported that he had injured both knees in a parachuting accident. The X-ray showed that the veteran's knees were normal at that time. On physical examination of the left knee, the veteran had a normal gait and he walked without a limp. The left knee flexed from 0 degrees to 140 degrees. The examiner said there was "really no significant increased crepitus" on the day of examination. However, the veteran complained that the knee would "go out" in an anterior-posterior direction. The examiner reported that the veteran was unable to demonstrate any true anterior cruciate ligament looseness; however, he indicated that such was often the case in veterans who had heavy musculature, which was true in this case. The veteran did not have atrophy. The right knee was also capable of flexion from 0 degrees to 140 degrees. There was a slight amount of increased crepitus on the right side with slight patellar catching. The examiner diagnosed residuals of trauma to the left and right knees, postoperative on the left. Medical records from the Cincinnati Group Health Associates, Inc., dated between July 1995 and September 1998, reflect the veteran's knee symptomatology worsened bilaterally during that period of time. A medical note dated in July 1995 referred to an arthroscopy performed on the veteran in 1986, and the examiner indicated that the veteran had continued to have some pain intermittently about the knee joint, some giving way, but no falling, no locking, and no effusion. On physical examination, there was mild crepitus about the lateral side of the joint that would be consistent with degenerative arthrosis of the lateral compartment. The veteran's knee was not varus or valgus malaligned. He had a normal anterior and posterior drawer, negative FRD, and negative Lachman. He had no swelling and negative patellar symptoms. The examiner diagnosed probable early degenerative arthrosis, lateral compartment. In January 1998, the veteran was seen by a VA examiner, who reported that there was left knee swelling, pain on palpation under the patella. The knee's range of motion was good, but there was crepitus. The examiner ordered left knee X-rays, which showed no bony or soft tissue abnormality. The examiner's impression of the X-rays was "a normal study." Subsequent medical notes from Cincinnati Group Health Associates, Inc., show that the veteran began to develop pain, swelling, and locking in his left knee. Apparently, pain in the left knee was increasing as of February 1998. The clinical record includes a March 1998 Group Health operation report of an arthroscopy. The preoperative diagnosis was medial meniscal tear; the postoperative diagnosis was chondromalacia patella, lateral plateau chondromalacia, and synovitis. The veteran's knees were further examined by the VA in April 1998. According to the VA examiner, the veteran had pain, weakness, stiffness, swelling, locking, and giving way and fatigability of both knees. He did not have any heat or redness of either knee. The pain was constant, underlying, and present in both knees, but it could be controlled somewhat with medication. He did not have specific flare up of his joint disease. He only had constant and progressive joint disease with pain that was anywhere from six to seven on a scale of ten. Precipitating factors were prolonged sitting and bending. Alleviating factors included walking regularly and not bending over repeatedly. There was no additional limitation of motion and the veteran did not require crutches, braces, or a cane. The examiner stated that the veteran did not have episodes of dislocation or recurrent subluxation, and that he had no inflammatory arthritis. However, the examiner reported that the veteran's knee problems caused decreased ambulation due to pain, and the veteran could not walk as far as normal. On physical examination, he had full range of motion in both knees as measured passively and actively. However, he did have a bilateral, positive, anterior drawer sign, positive bilateral Lachman's sign, and positive bilateral McMurray's sign. He had negative posterior drawer sign bilaterally. He also had a positive medial collateral ligament and lateral collateral ligament range of motion. The range of motion was between one to three degrees; however, because he did have greater than zero degrees, those were positive findings for range of motion in his collateral ligaments. The examiner diagnosed bilateral ACL tears and bilateral meniscal tears. The veteran testified at his RO hearing in August 1998 that he had knee instability, especially in his left knee. He said that his left knee was far worse than his right knee. He further reported that although he was not having problems with his range of motion, he had pain all the time which he attempted to alleviate through propping his knees up on a pillow. The medical evidence tends to show that the veteran's knee symptomatology has worsened since August 1995. At that point, the clinical evidence showed that the veteran's knees were almost asymptomatic and he had flexion in both knees from 0 degrees to 140 degrees. Although the veteran was still able to have full movement in both knees as of April 1998, he had other symptoms, such as knee pain, positive bilateral anterior drawer sign, Lachman's sign, and McMurray's sign. He has stated that his left knee is much worse than his right knee and that he needs to put a pillow between his legs to sleep, although medication apparently alleviates some of the knee pain. However, there is no medical evidence of either recurrent subluxation in either of his knees. In fact, the examiner in April 1998, the time of the most recent examination, affirmatively stated that the veteran did not have recurrent subluxation or an inflammatory arthritis in his knees. In light of the lack of medical evidence for recurrent subluxation or lateral instability, an evaluation in excess of 10 percent for his right knee is not warranted under DC 5257. Nevertheless, the veteran's left knee has meniscal damage and tearing, as shown by the March 1998 operative report. Evidence of pain throughout motion and meniscus tearing is commensurate with of a 20 percent evaluation for the left knee under DC 5258. In reaching its decision of whether to increase the current rating assigned to the veteran's knees, the potential application of various provisions of Title 38 of the Code of Federal Regulations (1999) were considered, regardless of whether they were raised by the veteran. See Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). Under DC 5260, a zero percent evaluation is warranted if flexion of the leg is limited to 60 degrees. A 10 percent evaluation is warranted if flexion is limited to 45 degrees. A 20 percent evaluation is warranted if flexion of the leg is limited to 30 degrees. A 30 percent evaluation, the highest available under the schedular provisions, is warranted if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260 (1999). Under DC 5261, a zero percent evaluation is warranted if extension of the leg is limited to 5 degrees. A 10 percent evaluation is warranted if extension is limited to 10 degrees. A 20 percent evaluation is warranted if extension of the leg is limited to 15 degrees. A 30 percent evaluation is warranted if extension is limited to 20 degrees. A 40 percent evaluation is warranted if flexion is limited to 30 degrees. A 50 percent evaluation, the highest available under the schedular provisions, is warranted if flexion is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. In this regard, the VA examination reports of August 1995 reflect that the veteran's range of motion of the right knee was 0 degrees to 140 degrees. Moreover, the VA examiner in April 1998 indicated that the veteran had full range of motion measured both actively and passively. He also reported that there was no additional limitation of motion. Thus, the veteran does not meet the criteria for an increased rating under either DC 5260 or DC 5261. Although the Board is cognizant of the veteran's arthroscopy in March 1998 and his knee pain, the pain does not cause additional limitation of motion and he has full range of motion in both knees. As these codes are based on limitation of motion, they do not permit even compensable ratings for the veteran's residuals of trauma to the left and right knees. The Board has further considered the provisions of 38 C.F.R. §§ 4.40 and 4.45, but the clinical findings are not reflective of additional disability due to pain or weakened movement associated with the service-connected disabilities at issue. The record does not present an approximate balance of positive and negative evidence with respect to an evaluation in excess of 20 percent for his left knee and 10 percent for his right knee as to permit application of the benefit-of-the-doubt rule. 38 U.S.C.A. § 5107(b). Moreover, X-ray reports of August 1995 and January 1998 are negative for any signs of arthritis, and the examiner in April 1998 stated that there was no inflammatory arthritis. Thus, a separate rating for arthritis of the knees is not warranted under applicable provisions. ORDER An initial rating for lumbosacral strain with fracture of the coccyx and degenerative disc disease in excess of 20 percent is denied. An initial rating for residuals of trauma to the left knee in excess of 20 percent is denied. An initial rating for residuals of trauma to the right knee in excess of 10 percent is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals