Citation Nr: 0005587 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 94-24 898A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability evaluation for arthritis of the left knee, currently evaluated as 10 percent disabling. 2. Evaluation of a left knee meniscectomy (formerly rated as a left knee injury with meniscectomy and arthritis). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. M. Ivey, Associate Counsel INTRODUCTION The veteran had active service from December 1986 to July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Preliminary review of the record reveals that the RO expressly considered referral of the veteran's claim for an increased evaluation for his disability to the VA Undersecretary for Benefits or the Director, VA Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). That regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Undersecretary for Benefits or the Director, VA Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award 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. The United States Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC 6-96 (1996). FINDINGS OF FACT 1. Traumatic arthritis of the left knee is currently manifested by range of motion between 5 degrees and 110 degrees; marked crepitation on movement; intact collateral and cruciate ligaments; intact reflexes, sensation and circulation; without evidence of joint effusion, localized tenderness, painful patella compression, instability or subluxation of the patella. 2. The left knee meniscectomy is asymptomatic. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for traumatic arthritis of the left knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.7, 4.14, 4.20, 4.40, 4.45, 4.59, 4.71a and Codes 5010, 5260, 5261 (1999). 2. The criteria for a compensable rating for a left knee meniscectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.7, 4.14, 4.20, 4.31, 4.40, 4.45, 4.59, 4.71a and Codes 5258, 5259 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant contends that his left knee injury is more severe than currently evaluated and that he is entitled to an increased disability evaluation. The veteran's claim for an increased rating for his service- connected left knee disability is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, his assertion that his service-connected disability has worsened raises a plausible claim. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). All relevant facts have been properly developed. VA has completed its duty to assist the veteran in the development of his increased rating claim. See 38 U.S.C.A. § 5107(a). The veteran has not reported that any other pertinent evidence might be available. See Epps v. Brown, 9 Vet. App. 341, 344 (1996). The Board has considered all the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. See Francisco v. Brown, 7 Vet. App. 55 (1994). A December 1988 rating decision granted service connection for residuals of a left knee injury, postoperative meniscectomy with degenerative changes and instability. The disability was rated as 20 percent disabling under diagnostic code 5257. In a rating decision dated September 1989 the evaluation was decreased to 10 percent under diagnostic codes 5010-5257. A March 1995 rating decision granted a temporary 100 percent evaluation between September 1994 and November 1994, pursuant to 38 C.F.R. § 4.30, convalescent ratings. Service-connected disabilities are rated in accordance with a schedule of ratings, which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Traumatic arthritis established by X-ray findings is to be evaluated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (1999). Degenerative arthritis established by X-ray findings will be evaluated on the basis of limitation of motion of the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999). Other impairment of the knee, recurrent subluxation or lateral instability will be rated as 10 percent disabling where slight, 20 percent disabling where moderate, and 30 percent disabling where severe. 38 C.F.R. Part 4, Code 5257 (1999). However, there is no recent competent evidence of subluxation or lateral instability. Therefore, this diagnostic code is not applicable. Under Diagnostic Code 5260, flexion limited to 60 degrees warrants a 0 percent evaluation; flexion limited to 45 degrees warrants a 10 percent evaluation; flexion limited to 30 degrees warrants a 20 percent rating; and flexion limited to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 5260 (1999). Under Diagnostic Code 5261, extension limited to 5 degrees warrants a 0 percent evaluation; extension limited to 10 degrees warrants a 10 percent evaluation; extension limited to 15 degrees warrants a 20 percent evaluation; extension limited to 20 degrees warrants a 30 percent evaluation; extension limited to 30 degrees warrants a 40 percent evaluation; and extension limited to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 5261 (1999). Where there is a question as to which of two disabilities 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 (1999). I. Background In January 1991 the veteran complained of left knee pain. Upon examination the range of motion was from 0 to 120 degrees. He was provided a brace and a walking cane. VA outpatient treatment records dated January 1991 to September 1993 show that the veteran was seen for complaints of left knee pain. The veteran complained of left knee pain in September 1992. No redness, no swelling and no impedance of movement were noted. The diagnosis was traumatic arthritis of the left knee. In June 1993 the veteran's left knee was swollen and hot. He had pain on the lateral side. The diagnosis was arthritis of the left knee. In September 1993 his left knee range of motion was from 8 degrees to 120 degrees. The left knee drawer sign was decreased. There was no swelling but there was crepitation. The diagnosis was traumatic arthritis of the left knee with limitation of motion and weakness. In his March 1994 Notice of Disagreement the veteran reported constant pain, worse with standing and weather changes. He indicated that he had swelling all of the time and that on several occasions he had missed work because of the swelling. The March 1994 VA X-rays showed degenerative changes involving all compartments of the knee, but particularly the posterior aspect of the patella and adjacent femur. Presumptive evidence of a 1.5 cm joint mouse at the level of the medial intercondylar eminence was noted. The films demonstrated a soft tissue prominence posterior to the knee, attributed to a Baker's cyst until proved otherwise. The impression was significant degenerative changes of the left knee with presumptive evidence of 1.5-cm joint mouse, as well, as suspicion for a Baker's cyst. The VA outpatient treatment records dated March 1994 to June 1994 showed that the veteran was seen for degenerative joint disease. The May 1994 Magnetic Resonance Image (MRI) revealed a bucket handle tear laterally clarifying the left knee. Two loose bodies were noted. There was an osteochondral defect on the lateral tibial compartment and advanced degenerative changes. The anterior cruciate ligament, posterior cruciate ligament, collateral ligaments and patellar tendon appeared intact. The diagnostic impression was advanced degenerative joint disease. Between August 1994 and January 1995 the veteran was seen by a private physician for left knee pain. The July 1994 X-rays showed advanced degenerative joint changes of the knee. No detectable loose body was identified. On the MRI, the anterior cruciate ligament appeared intact. There were degenerative changes at the remaining menisci and prominent osteophyte formation. The diagnosis was posttraumatic arthritis of the left knee. In August 1994 the veteran complained of aching pain and stiffness in the knee. Examination revealed peripheral osteophytes and synovial thickening about the knee area. There was no detectable joint effusion. There was no localized pain at the medial or lateral joint line. The veteran had extension to within about 5 degrees of full extension and flexion only to 90 degrees. There was no instability. Prominent grinding and crepitation were present with range of motion. Arthroplasty of the lateral compartment and trimming of lateral meniscal rim was performed in September 1994. At the December 1994 VA examination the veteran reported some slight swelling from time to time and pain which responded to simple medication. The veteran did not walk with a limp. On examination there was a loss of motion. Range of motion was from 10 degrees to 105 degrees. He lacked the last 10 degrees of extension and flexed only to 105 degrees. There was a well-healed lateral parapatellar incision, which was three inches in length and was normal in all respects. There was 1/2-inch atrophy of the left quadriceps. No effusion was present and ligamentous structure was intact. The December 1994 VA X-rays showed marked degenerative changes involving all three compartments of the knee. A bucket-handle tear of the lateral meniscus was demonstrated. The medial meniscus was intact. There appeared to be two loose bodies, one in the midline anteriorly in the region of the intercondylar notch, and the second was posteromedial. The diagnosis was degenerative arthritis of the left knee. At the January 1998 VA examination the veteran complained of a dull aching pain in the knee whenever he stood for prolonged periods of time and during weather changes. Upon examination the veteran did not appear to be in acute or chronic distress. He walked with a normal gait. The left knee had a knobby, irregular contour and there was an old, healed horizontal incision over the lateral aspect of the joint. Joint effusion or localized tenderness about his knee was not noted. The veteran's Q-angles were normal and patella compression failed to elicit pain. There was no evidence of any instability or subluxation of the patella and no localized tenderness about any of the joint spaces. The range of motion about the left knee was from a 5 degrees to 110 degrees flexion. There was marked crepitation on movement. His collateral and cruciate ligaments were intact. The veteran's reflexes, sensation and circulation were intact throughout both lower extremities. His left knee measured 40 centimeters in circumference. The left quadriceps was 2 cm. smaller than the right. The diagnosis pending X-rays was status post operative multiple surgeries, of the left knee with marked and severe degenerative arthritis. The January 1998 VA X-rays revealed tricompartmental degenerative changes of the knee, particularly involving the patello-femoral space. There was presumptive evidence of a 1.5-cm joint mouse adjacent to the medial intercondylar eminence. There was also suspicion for a Baker's cyst. The impression was significant degenerative changes of the left knee with presumptive evidence of a 1.5-cm joint mouse, as well as suspicion for a Baker's cyst. II. Analysis a. Arthritis of the Left Knee The VA X-rays showed significant degenerative changes. The March 1994 VA MRI and the July 1994 private X-rays showed advanced degenerative joint disease. It must be noted that the current evaluation contemplates the presence of degenerative changes. Part 4, Code 5003-5010. The current evaluation contemplates the presence of periarticular pathology productive of painful motion. 38 C.F.R. § 4.59. The evaluation contemplates the presence of limitation of extension to 10 degrees or limitation of flexion to 45 degrees. In order to warrant an increased evaluation, there must be the actual or functional equivalent of limitation of flexion to 30 degrees or the actual or functional equivalent of limitation of extension to 15 degrees. The examination reports have been relatively consistent and have established the veteran's range of motion, noting at which point the knee is functionally impaired. The examiners have noted the presence of pain and functional limitation at the extremes of motion. The functional range of flexion has also varied and has been limited by pain. However, no examiner has established the actual limitation of motion or the functional equivalent of limitation of flexion to 30 degrees or extension to 15 degrees. The functional impairment established by the examiners is consistent with no more than a 10 percent evaluation. The Board is aware that examiners have described the extent of degenerative change as severe and the degree limitation of motion as significant. The Board agrees. However, the evaluation is based on the actual functional impairment rather than a modifier as significant. In regard to the degenerative changes, the rating schedule contemplates the presence of the degenerative change and its resultant functional impairment (rather than the extent of the degenerative change). See Code 5003, 4.40, 4.45, and 4.59. The current 10 percent rating contemplates pain on movement. See 38 C.F.R. § 4.59 (1999). There is no evidence of effusion. Although the left quadriceps is smaller than the right, it is smaller by only 2 cm. or 1/2 inch. Stated differently, the arthritis results in limitation of function consistent with the minimum compensable evaluation for periarticular pathology productive of painful motion and no more. The pain and other symptoms reported by the veteran as well as the medical findings show functional impairment for which a 10 percent rating is appropriate. The left knee disability manifestations do not approximate any applicable criteria for higher ratings. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 4.7 (1999). The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. 5107(b) (West 1991); 38 C.F.R. 4.7 (1999). An increased evaluation is not warranted. 38 C.F.R. §§ 4.40, 4.45, and 4.59 are applicable in evaluating arthritis. See DeLuca; Hicks v. Brown, 8 Vet. App. 417 (1995); Spurgeon v. Brown, 10 Vet. App. 194 (1997). 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 (1999). 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. (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 (1999). The Board has considered the regulatory guidance for evaluating joints. See DeLuca. With these factors in mind, the Board has reviewed the evidence to determine the extent of the current disability. The VA General Counsel has determined that a knee disability can be rated under Code 5257 for instability and can also be rated for limitation of motion, if the evidence shows that both types of impairment are present. VAOPGCPREC 23-97 (July 1, 1997). Periarticular pathology productive of painful motion is entitled to the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (1999). The RO's evaluation of 10 percent was based on periarticular pathology, pain and limitation of motion. Although the RO employed the use of diagnostic code 5257, it is clear from the rating decisions that the RO used a hyphenated code 5010- 5257. In 1993 there was evidence of decreased drawer sign. On subsequent examinations the veteran's knee was stable. There was no evidence of instability in 1998. The preponderance of the evidence shows that there is no instability ratable under diagnostic code 5257. We also note that the RO specifically determined that the evaluation was based on painful motion rather than instability. The veteran is clearly competent to report that his service- connected symptomatology has increased in severity. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the findings by the trained medical examiners outweigh the veteran's contentions that an increased rating is warranted. On the December 1994 and the January 1998 VA examination the physicians considered the factors limiting knee functioning in accordance with 38 C.F.R. §§ 4.40, 4.45 (1999), See also DeLuca, noting that the veteran reported some slight swelling at the December 1994 examination; and a dull aching pain at the January 1998 VA examination. Between January 1991 and January 1995 the veteran complained of left knee pain to both VA physicians and a private physician. In September 1993 his left knee range of motion was from 8 degrees to 120 degrees. In August 1994 the veteran's range of motion was between 5 degrees and 90 degrees. At the December 1994 VA examination his range of left knee motion was from 10 to 105 degrees. At the January 1998 VA examination the veteran's range of left knee motion was from 5 degrees to 110 degrees. A higher rating requires the functional equivalent of limitation of extension to 15 degrees. The veteran's functional limitation of extension was to 10 degrees. This approximates the criteria for a 10 percent evaluation. The veteran's limitation of extension does not meet the 15 degrees criteria for a 20 percent evaluation. A higher rating for requires the functional equivalent of limitation of flexion to 30 degrees, to warrant a 20 percent rating. All of the veteran's examinations show that his flexion exceeded 90 degrees. He does not approximate the criteria for an increased rating for limitation of flexion. There was never any limitation of motion in any of the examinations that would require a higher rating under 38 C.F.R. Part 4, Codes 5260 and 5261 (1999). Considering the applicable regulatory factors of 38 C.F.R. §§ 4.40 and 4.45, the Board concludes that the veteran's functional impairment is consistent with the ten percent evaluation. Although there was evidence that the quadriceps was small than the opposite side, weakness was not described in recent examination reports. There is no indication from the veteran or the examination reports that there is the functional equivalent of limitation of motion greater than that described by the examiners. There is no evidence of excess fatigability. Although there is pain, it does not limit motion more than a report of limitation of extension to 10 degrees or limitation of flexion to 90 degrees. The veteran indicated that there was some difficulty squatting and kneeling, however his statement reflects that such actions could be performed. There is no evidence of incoordination, in fact, the examiner noted that he walked with a normal gait. The veteran himself noted that he could go up and down stairs without difficulty. There has been no indication of more motion than normal Based on the objective evidence and the veteran subjective statements, the Board concludes that the actual limitation of motion and the functional equivalent of limitation of motion are equivalent. The preponderance of the evidence is against the claim and there is no doubt to be resolved. b. Left Knee Meniscectomy A meniscectomy, or removal of a semilunar cartilage, will be rated as 10 percent disabling if the residuals are symptomatic; otherwise a noncompensable rating will be assigned. 38 C.F.R. Part 4, including § 4.31 and Code 5259 (1999). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). The RO separately evaluated the meniscectomy from the limited motion due to arthritis. Examinations of the veteran's knee have shown limitation of motion and crepitation associated with limitation of motion. However, the evidence does not disclose any manifestations separate from those affecting the knee motion. 38 C.F.R. § 4.59 (1999). There is no separate symptomatology, hence, no basis to assign a compensable evaluation under diagnostic code 5259. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (1999). The provision of 38 C.F.R. § 4.14 (1999) state that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. In Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that the disability in that case - - scarring -- warranted 10 percent evaluations under three separate diagnostic codes, none of which provided that a veteran may not be rated separately for the described conditions. Therefore, the conditions were to be rated separately under 38 C.F.R. § 4.25 unless they constituted the "same disability" or the "same manifestation" under 38 C.F.R. § 4.14. Esteban, at 261. The critical element cited was "that none of the symptomatology for any one of those three conditions [was] duplicative of or overlapping with the symptomatology of the other two conditions." Id., at 262. A precedent opinion of the VA General Counsel, VAOPGCPREC 23-97 (7/1/97), held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, citing Esteban. c. Scars Superficial scars will be rated as 10 percent disabling where they are poorly nourished, with repeated ulceration or tender and painful on objective demonstration. 38 C.F.R. Part 4, Codes 7803, 7804 (1999). Where these criteria are not met, a noncompensable rating must be assigned. 38 C.F.R. § 4.31 (1999). A scar may also be rated on limitation of function of the part affected. 38 C.F.R. Part 4, Code 7805 (1999). The Board notes that a separate 10 percent rating is not warranted for the residual scar as it was not shown to be tender and painful, and the veteran did not report that it was tender and painful. The evidence does not show the veteran's scar to be poorly nourished, with repeated ulceration; or that such scar limited the veteran's left knee function. ORDER An increased evaluation for traumatic arthritis of the left knee is denied. A compensable evaluation for a left knee meniscectomy is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals