Citation Nr: 0007793 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 93-19 080 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a seizure disorder. 2. Entitlement to an increased disability evaluation for left knee arthritis, currently evaluated as 10 percent disabling. 3. Entitlement to an increased disability evaluation for residuals of a fracture of the temporoparietal bone, with headaches, currently evaluated as 10 percent disabling. 4. Entitlement to a total rating for compensation purposes based on individual unemployability. 5. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Mark D. Chestnutt, Counsel INTRODUCTION The veteran served on active duty from February 1971 to April 1973. This appeal stems, in part, from an June 1992 rating decision of the RO that denied increased ratings for the veteran's service-connected arthritis of the left knee, and for his service-connected residuals of a fracture of the temporoparietal bone, with headaches. This case was remanded by the Board in February 1994 for additional development, at which time the veteran had raised some claims that had not been previously adjudicated. This appeal also stems from a December 1995 rating decision which denied those raised claims: service connection for a seizure disorder, entitlement to VA pension benefits and entitlement to a total rating. The veteran expressed disagreement with the denials of these latter three claims in July 1996, and a (supplemental) statement of the case was issued in September 1996. The veteran's representative filed a VA Form 646 in December 1996, which the Board of Veterans' Appeals (Board) finds constitutes a timely appeal with respect to these three issues. See 38 C.F.R. §§ 3.110; 20.305 (1999). The Board notes, in any event, that it has addressed all five of these claims in its most recent remands. In February 1997 the Board remanded the case because the veteran had requested a second Travel Board hearing. This hearing was provided in September 1996. In February 1998 the Board again remanded this case essentially because the veteran had identified medical records that might link his seizure disorder to service, and to obtain a neurological examination. The Board also sought Social Security Administration records potentially relevant to his more recent claims for pension benefits and for a total rating, as well as to have the veteran undergo an examination for the left knee that would account for pain on use and functional loss. The RO completed these actions, and returned the case to the Board. Since the RO did not readjudicate these issues or promulgate a supplemental statement of the case regarding them, another REMAND is required. Further, the claim of entitlement to a total rating for compensation purposes based on individual unemployability must be readjudicated by the RO in light of the grant of service connection herein for a seizure disorder. The Board also notes that the veteran has periodically attempted to obtain service connection for a left-ear hearing loss and for right knee arthritis, but has repeatedly failed to perfect appeals for the denial of such claims. Likewise, although the RO denied service connection for a disability of the eyes in an October 1999 rating decision, from which the veteran filed a notice of disagreement, there is no appeal of record following the December 1999 statement of the case. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the issues decided herein has been obtained. 2. The veteran's current seizure disorder has been medically linked to an inservice accident. 3. Left knee arthritis is currently manifested by subjective complaints of pain on range of motion testing, with limited function manifested by inability to perform prolonged standing and walking for more than two hours at each setting, or repeated squatting, bending or kneeling. CONCLUSIONS OF LAW 1. Service connection is warranted for a seizure disorder. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The schedular criteria for an evaluation greater than 10 percent for arthritis of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.14, 4.59, Part 4 Diagnostic Codes 5003, 5010, 5257, 5258, 5260, 5261 (1999); VAOPGCPREC 9-98 and 23-97. REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claims for service connection for a seizure disorder and for an increased rating for his service-connected left knee arthritis, to be "well grounded" within the meaning of 38 U.S.C.A. § 5107. With respect to his service-connection claim he has presented evidence of an inservice injury, a current disability, and a medical link between the two. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (regarding the well groundedness of an increased-rating claim). The Board is also satisfied that all relevant evidence has been properly developed and that there is no further duty to assist in order to comply with the duty to assist, with respect to these two issues, as mandated by 38 U.S.C.A. § 5107. I. Facts Service medical records reveal that in June 1971 the veteran had complaints of pain and swelling of the left knee; chondromalacia was diagnosed. In March 1972 the veteran was involved in a motor vehicle accident. He fractured the left temporoparietal bone, and incurred an abrasion of the left leg. A May 1972 investigation report concluded that the accident had occurred in the line of duty. In December 1972 he complained of post-concussion headaches. The March 1973 separation examination report is essentially negative, although the veteran still complained of having headaches subsequent to the 1972 accident. A consultation report, made at the time of the separation examination, concludes that the veteran had musculoskeletal headaches. A neurological examination by VA in March 1976 was essentially negative, although the veteran complained of headaches and dizziness. During the orthopedic evaluation at that time, the veteran described a 1971 football injury to the left knee. Radiological evidence on the current evaluation revealed arthritis of that joint. In a September 1976 rating decision, the RO granted service connection for a fracture of the left temporoparietal bone with headaches, and for arthritis of the left knee. The record reveals that the veteran was apparently hit by a bus, as a pedestrian, in December 1979. A police report indicates that the veteran had sustained a fracture of his jaw, multiple contusions, and a left frontal hematoma. Reportedly, the veteran had also lost consciousness. An August 1986 VA outpatient record indicates that the veteran had been involved in a motor vehicle accident apparently a few days earlier. He reportedly had hit his head. Headaches following trauma were noted. An April 1990 VA outpatient treatment record reveals internal derangement of the knees. VA outpatient records show that in May 1990, the veteran reportedly had had "blackout(s)." A VA record from May 1991 reveals that the veteran complained of having had six previous blackouts that would usually start with a headache. A June 1991 electroencephalogram was undertaken due to the veteran's blackouts and because of a possible seizure disorder. Except for some frontal eye movements, there were no other localizing abnormalities or epileptiform discharges noted. During VA treatment in September 1992 the veteran indicated that he had had seizures for the past one-and-a-half years. The examiner apparently assessed the veteran's seizures as probably secondary to the 1972 motor vehicle accident. An April 1993 VA outpatient record indicates that the veteran had alcohol-related seizures. An April 1994 VA outpatient treatment record indicates that the veteran had secondary generalized seizures, apparently related to too much caffeine and alcohol consumption. At an August 1993 hearing before the Board, the veteran testified regarding having swollen knees; he indicated that sometimes they would "lock" and that he could not stand. He also asserted that his seizures began about two-and-a-half years ago. In the context of the history of the 1972 accident, a May 1994 VA examination report contains a diagnosis of possible petit mal seizures. At that time, there was pain on palpation of the infrapatellar area of the knees; anterior- posterior ligament instability was noted. A February 1994 VA record repeats the June 1991 electroencephalographic report findings, and contains a diagnosis of a seizure disorder. During an August 1996 examination by a private physician, conducted pursuant to the veteran's claim for Social Security Administration benefits, the veteran complained of occasional knee pain which could be quite severe, and swelling. He reported ankle problems as well, and indicated that he could only walk about one-and-a-half blocks. He used a walker for pain and balance problems. Objectively, there was mild-to- moderate pain in the left knee. Flexion was 135 degrees, and extension was "180" degrees. There was no crepitation and no patellar instability. A May 1997 VA magnetic resonance imaging (MRI) scan report reveals complex tears of the posterior horns of the left lateral and medial meniscus. At a September 1997 hearing before the Board the veteran testified that he would have headaches along with his seizures. He also discussed difficulties he had with his knees, noting that he wore braces--because the knees would buckle--and used a cane. The veteran was provided a VA consultation examination with a private physician in May 1999. The physician stated that he reviewed the medical records and the Board's [prior] remand. It was noted that the veteran had knee braces, which were removed for the examination, and that he used a four-point cane. The examiner noted the veteran's complaints of pain, swelling, "giving way" and locking of the knee(s). The veteran's gait was slow, but normal. While sitting, flexion of the left knee was 115 degrees, extension was 0 degrees; in the supine position, range of motion was 0 to 95 degrees. There was no weakness, lack of endurance, fatigue or incoordination, although there was pain at the maximum of the ranges. Patellar compression tests caused mild pain. Slight patella alta was noted. Objectively, there was no laxity of the knees. Radiologically, the left knee was normally aligned; the patella was in the midline. There were no degenerative changes or spurring. The findings were interpreted as normal, and the examiner noted some previous findings which were likewise negative for degenerative changes. The examiner noted the earlier findings of meniscal tears, and diagnosed the same. The examiner also noted an earlier finding of patella alta which was indicated as possibly causing some pain from tracking problems. With respect to functional limitations, the examiner stated that the veteran could not endure prolonged standing and walking for more than two hours at each setting, or repeated squatting, bending or kneeling. There were no visible manifestations of movement of the joints causing locking, snapping or clicking, even though veteran verbally expressed he had pain upon slow movement. There was no atrophy of the muscles, no difference in thigh circumference, and no other manifestations attributable to the knee disability. The veteran was provided a VA neurological consultation examination by another private physician in June 1999. The physician indicated that she reviewed the medical records and the Board's remand. She discussed the 1972 inservice accident, the 1986 postservice accident, and the records showing seizures, including those that related the condition to alcohol. She noted, however, that the veteran reportedly had not been consuming alcohol in the past year. She reviewed the record, and commented that the veteran had had frequent head pain since 1972. Objective evaluation was essentially negative, but upon review of the record and speaking with the veteran, the physician determined that the veteran had posttraumatic seizure disorder, with an estimated date of onset in 1975. She indicated that the veteran's first seizure occurred in 1975 secondary to the 1972 accident. II. Seizure disorder Service connection will be granted for disabilities resulting from personal injury suffered or disease contracted, or for aggravation of a preexisting injury suffered or disease contracted, in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In this case, the veteran clearly was involved a motor vehicle accident that was incurred in the line of duty. There are medical opinions in the record that diagnose a current seizure disorder, and have medically linked the veteran's seizures with that accident. There is some contrary evidence, such as the findings that relate the veteran's seizures to alcohol use. Nonetheless, the most recent consultation examination for this disability included a review of these records, and an acknowledgment of the 1986 postservice accident. That examiner, however, determined that the veteran's seizures are the result of the 1972 inservice accident. The Board finds that the positive and negative evidence is approximately in equipoise, thus the veteran is entitled to the benefit of the doubt. Service connection is therefore warranted for a seizure disorder. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303 (1999). III. Left knee arthritis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, and 4.42 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 have 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 histories and findings pertaining to this disability. See also Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (in evaluating the veteran's disability, 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). Disability evaluations are based upon the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The veteran's service- connected left knee arthritis is currently evaluated as 10- percent disabling under the provisions of 38 C.F.R. Part 4, Diagnostic Code 5010-5260. This evaluation usually contemplates that flexion of the extremity is limited to 45 degrees, although it appears that the veteran was provided a minimum rating based upon pain. See 38 C.F.R. § 4.59; Diagnostic Code 5003 (under which traumatic arthritis, per Diagnostic Code 5010, receives the minimum rating when confirmed on x-ray even without limitation of motion). In order to be entitled to an evaluation greater than 10 percent under Diagnostic Code 5010-5260 the veteran must demonstrate limitation of flexion to 30 degrees. Alternatively, a higher evaluation may be awarded if extension of the lower extremity is limited to 15 degrees. Diagnostic Code 5261. In rating the orthopedic limitation of motion the Board must consider functional loss, such as due to pain and weakness. 38 C.F.R. § 4.40. The factors of disability that reduce normal excursion of the joints in different planes include movement that is more or less than normal, weakened movement, excess fatigability, incoordination and pain on movement. 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Schedule for Rating Disabilities, 38 C.F.R. Part 4, is to recognize painful motion with joint 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. 38 C.F.R. § 4.59, supra. Regarding the diagnostic codes for flexion and extension of the knee, 5260 and 5261 respectively, the veteran does not meet the objective criteria for a higher rating under either. See 38 C.F.R. § 4.14 (the rule against "pyramiding" would prohibit evaluations under both diagnostic codes). Although in 1996 he indicated subjectively that he had "severe" knee pain, this has not been clinically demonstrated recently. That year, objectively he had mild-to-moderate left knee pain. On the recent VA consultation examination the veteran verbalized that he had some pain on slow movement, but there were no additional, objective clinical findings to support this. He had a normal gait, and there appeared to be little evidence of additional limitation of motion. The veteran's functional limitations were that he could not endure prolonged standing and walking for more than two hours at each setting, or repeated squatting, bending or kneeling. There is little evidence of additional limitations due to pain, per se, for which he has not already been compensated. 38 C.F.R. § 4.59; Diagnostic Code 5003. In particular, the Board notes that the 1999 orthopedic examination specifically found there was no weakness, lack of endurance, fatigue or incoordination, even though there was pain at the maximum of range of motion testing. Further, there was no atrophy of the thigh muscles--whether attributable to the knee disability(ies) or otherwise--and no other manifestations of the left knee disability. There are no recent findings even demonstrating actual arthritis of the joint--i.e. the disability for which he is service connected. The recent findings of meniscal tears are not compensable since they are not service connected, and regardless, no symptoms attributable to any left knee disability would provide a higher rating. The Board thus finds that the evidence does not support more than the minimum compensable rating under Diagnostic Codes 5010-5260 or 5010-6261. 38 C.F.R. §§ 4.40, 4.45; DeLuca. The VA General Counsel has opined that separate ratings may be assigned, without violating the rule against "pyramiding," for service-connected knee instability and service-connected arthritis with limitation of motion. See VAOPGCPREC 9-98 and 23-97; see also 38 C.F.R. § 4.14. Assuming hypothetically that the veteran's complaints of locking and effusion are somehow related to his service- connected arthritis, a higher evaluation might then be awarded for the veteran's left knee disability under Diagnostic Code 5258 for dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint. (Emphasis added). Moderate recurrent subluxation or moderate instability of the knee, if shown, can also entitle a claimant to a higher evaluation under Diagnostic Code 5257. The most recent evidence, however, does not objectively demonstrate such findings. The recent evaluation revealed no laxity, instability or locking of the knees. Although instability was noted in 1994, objective findings for instability were specifically negative in 1996 and 1999. The veteran has used braces and a cane, but his complaints of instability do not appear to be confirmed, in large part, by much objective evidence. In any event, however, the veteran is not service connected for such disabilities--only for arthritis of the left knee. If such instability can be separately compensable, as a separate disability, it must first be separately service connected. It has not been, and no medical evidence relates any such knee pathology, to the extent it even exists now, to the service-connected arthritis. The Board notes that since Diagnostic Codes 5257 and 5258 are not based upon limitation of motion, the concerns raised in DeLuca do not apply. Johnston v. Brown, 9 Vet. App. 7, 10 (1996). An evaluation greater than 10 percent cannot be awarded. The criteria for an evaluation greater than that assigned have not been met or approximated as explained above. 38 C.F.R. § 4.7. With respect to this determination, the evidence is not so evenly balanced so as to raise doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for a seizure disorder is granted. Entitlement to a disability evaluation greater than 10 percent for arthritis of the left knee is denied. REMAND The RO has obtained a considerable amount of medical evidence since the Board's February 1998 remand, but has not readjudicated or issued a supplemental statement of the case for three of the veteran's claims that are on appeal: entitlement to an increased rating for residuals of a left temporomandibular fracture, entitlement to a total rating for compensation purposes based on individual unemployability, and entitlement to a permanent and total disability rating for pension purposes. In this regard, the Board also notes that the veteran's service-connected residuals of a left temporomandibular fracture are apparently evaluated on the basis of headaches, under Diagnostic Code 8045-9304. The RO, however, has not had the veteran recently examined for this disability, in particular with respect to whether there is any orthopedic disability regarding the fracture residuals, per se, that might entitle him to a higher rating under another diagnostic code. See e.g., 38 C.F.R. § 4.150, Diagnostic Codes 9900, et seq. This claim is thus appropriately REMANDED. In order to ensure that due process is provided to the veteran, this case is REMANDED for the following action: 1. The RO should schedule the veteran for a VA examination to determine the extent and severity of any residuals of the temporomandibular fracture. All indicated special studies should be accomplished and the claims folder should be made available to the examiner prior to the examination. If any findings are attributable to the veteran's postservice injuries, the examiner should so state. If it cannot be determined which findings result from which accidents, the examiner should likewise indicate such. Reasons and bases for all conclusions should be provided. 2. The RO should readjudicate the three issues: entitlement to an increased rating for residuals of a left temporomandibular fracture, entitlement to a total rating for compensation purposes based on individual unemployability, and entitlement to a permanent and total disability rating for pension purposes. If any claim is not resolved to the veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case and an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until otherwise notified. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. 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. Thomas J. Dannaher Member, Board of Veterans' Appeals