Citation Nr: 0005520 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 95-18 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a left knee disability as secondary to service connected residuals of a right medial meniscectomy with patellar tendon transfer. 2. Entitlement to an increased evaluation for residuals of a right medial meniscectomy with patellar tendon transfer, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K.L. Salas, Associate Counsel INTRODUCTION The veteran had active military service from November 1972 to November 1974. The current appeal arose from December 1993, August 1995, and October 1996 determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In December 1993 the RO denied entitlement to an increased evaluation for residuals of a right medial meniscectomy with patellar tendon transfer. In August 1995 the RO affirmed the determination previously entered and denied entitlement to service connection for residuals of a left knee injury as secondary to the service- connected disability of the right knee. The RO affirmed the denial of entitlement to service connection for a left knee injury as secondary to service-connected disability of the right knee in October 1996. In April 1998 the Board of Veterans' Appeals (Board) determined that new and material evidence had been submitted to reopen the previously denied claim of entitlement to service connection for a left knee disability as secondary to the service-connected residuals of a right knee meniscectomy with patellar tendon transfer, determined that a January 3, 1975 rating decision wherein the RO assigned a noncompensable evaluation for the service-connected disability of the right knee did not constitute clear and unmistakable error, and remanded the issues of entitlement to de novo consideration of service connection for a left knee disability as secondary to the service-connected disability of the right knee and an increased evaluation therefor to the RO for further development and adjudicative actions. In July 1999 the RO denied on a de novo basis entitlement to service connection for a left knee disability as secondary to the service-connected residuals of a right medial meniscectomy with patellar tendon transfer, and affirmed the denial of entitlement to an increased evaluation for residuals of a right medial meniscectomy with patellar tendon transfer. The case has been returned to the Board for further appellate review. The issue of entitlement to an increased evaluation for residuals of a medial meniscectomy of the right knee with patellar tendon repair is addressed in the remand portion of this decision. FINDING OF FACT A left knee disability is not causally related to the service-connected residuals of a medial meniscectomy of the right knee with patellar tendon repair either directly or on the basis of aggravation. CONCLUSION OF LAW A left knee disability is not proximately due to, the result of, or aggravated by the service connected residuals of a medial meniscectomy of the right knee with patellar tendon transfer. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.310(a) (1999); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Service medical records were unremarkable regarding the left knee. On the veteran's separation examination, no disorder of the left knee was noted. In a private treatment record from January 1980 the veteran reported that his right knee felt unstable as though he could not trust the knee. The knee ligament stability was "really quite good" according to the doctor's report. There was minimal or minor laxity. In February 1980 the veteran reported that his right knee was feeling stronger and he denied any giving way. He had been playing racquetball. The doctor stated that his impression was that the veteran would not have any residual physical impairment of his right knee. When the veteran originally filed his claim for entitlement to service connection it was contended that a left knee disability resulted from instability of the right knee. It was contended that the left knee was injured in a fall while skiing in April 1980, but that the fall occurred as a result of his right knee giving out. In May 1980 the veteran reported to his physician that his right knee was not bothering him very much but that in April 1980 he injured his left knee in a fall while skiing. He did not report to his doctor that his right knee had given out prior to the fall. In July 1980 the veteran underwent arthroscopy and arthrotomy of the left knee. The diagnosis was torn anterior cruciate ligament (ACL) of the left knee. Again, there was no report of right knee instability to include any right knee instability contemporaneously with his April 1980 fall. In correspondence received in August 1984 the veteran reported a right knee injury in 1980. He stated that due to having to favor his right knee "an injury occurred" to his left knee. The veteran underwent a VA orthopedic examination in April 1989. He reported post service injuries to his right and left knees. He could not remember the exact time sequence. The diagnosis was a partial tear of the left ACL, healed. X- rays showed mild osteoarthritis. The examiner noted that the veteran had sustained multiple injuries to both knees. The right knee complaints were deemed to be sequelae of the injury on active duty. Left knee complaints were attributed to the veteran's skiing injury preceding his surgery of July 1980. A lay statement submitted by an acquaintance of the veteran asserts that the veteran injured his left knee while skiing in April 1980. The acquaintance stated that the veteran fell to the right, which seemed to be caused by his right ski going out that way. He reported the veteran told him that he felt his right leg went out when he crashed. The veteran testified at a hearing at the RO in October 1989. His testimony, as recorded in the hearing transcript, was essentially consistent with his stated contentions. He maintained that his right knee gave out while skiing, causing his fall. He denied problems with the right knee on the day of the skiing accident prior the fall, but testified that he reported to medical providers who treated him after his fall that his right knee had given out. The veteran's private orthopedist, Dr. WRP, issued a written report on his behalf in June 1995. The doctor stated that the veteran had an injury in 1980 in which his right knee gave out causing him to injure his left knee. The basic cause of the accident was said to be instability of the right knee. In a report from March 1995 another physician, Dr. JFW, wrote that the veteran requested that he comment that the right knee injury could be causing problems with his left knee. According to the report, in the words of the doctor "The logic of this would be that he is favoring his right knee, and putting stress on the left knee." The doctor then stated that although that could be "possible" with a history of multiple injuries to his left knee, it was "hard to state that for certain." The November 1995 VA examination report shows the veteran's left knee was not examined and no opinion was made on etiology of a left knee disorder. In April 1996, August 1996 and October 1996, Dr. WRP submitted additional statements to the effect that the veteran's documented right knee disability would tend to result in right knee instability and that the unstable right knee contributed in some unspecified fashion to the injury of his left knee. In October 1996 the doctor wrote "Having a right knee that was somewhat unstable probably did contribute to the injury of the left knee. How can I make that any more clear than I have already made it, I don't know. People stand on two legs and having one knee that is unstable predisposes the opposite knee to injury." In his October 1996 report the doctor admitted that he was speculating on events more than 10 years prior to his last treatment of the patient. The veteran's hearing testimony at hearings in October 1995 and March 1997, and his written statements were essentially the same as his previous statements and hearing testimony of October 1989. The veteran underwent a VA examination of his left knee in February 1999. The examiner reviewed the evidence in the claims folder including the opinions of the veteran's private doctors. The examiner felt that the left knee injury resulted from the veteran's 1980 skiing accident. He did not feel that the veteran's right knee contributed to the injury. He added that the veteran's favoring of his right knee would not cause the pathology in his left knee. Criteria Disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. When aggravation of a non-service-connected condition is proximately due to or the result of a service-connected condition, a veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability that existed prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence; the claimant is required to submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well grounded. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. 38 C.F.R. § 3.102 (1999). 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 a 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 doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis The Board has carefully considered the evidence compiled by and on behalf of the veteran and determined that his claim for entitlement to service connection for a left knee disability as secondary to his service-connected right knee disability is well grounded within the meaning of 38 U.S.C.A. § 5107(a). The veteran has submitted medical opinion evidence from private treatment providers that his service connected right knee disability either made the right knee prone to instability and likely contributed to a post service injury to the left knee, or that it was possible, albeit uncertain, that in favoring his right knee he was putting undue stress on the left knee, resulting in a left knee injury and consequent disability. The Board is satisfied that as a result of the April 1998 remand of the case to the RO for further development, all relevant facts have been adequately developed for the purpose of adjudicating the claim for secondary service connection. No further assistance in developing the facts pertinent to the claim is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Identified medical records have been requested and the veteran has been provided with hearings and a VA examination. While the opinions of the veteran's treating doctors has been considered, and their opinions do not patently lack credibility, the preponderance of the evidence is against the veteran's claim and therefore the Board must deny the appeal. Gilbert, 1 Vet. App. 49. The most persuasive medical evidence was provided by the VA medical examiner who performed the February 1999 VA examination of the veteran's knees. The examiner was of the opinion that the veteran's left knee injury resulted from his post service fall and that the right knee was not a factor in development of the disability. The VA examiner addressed the opinions of the veteran's private physicians, Drs. WRP and JFW, and his opinion is most consistent with the evidence of record, whereas, as will be explained below, the opinion of Dr. WRP's opinion was premised on a fact not supported by the evidence of record. The VA examiner also gave the most detailed reasons for his opinion whereas Drs. WRP and JFW did not give detailed reasons. It is also important to note that the VA examiner had access to all of the evidence of record in the claims folder whereas Drs. WFP and JFW did not. The Board notes that the VA examiner at no time suggested that the service- connected right knee disability aggravated or caused a worsening of the left knee disability. Dr. WRP admitted that he was speculating many years after last treating the veteran, and premised his opinion that there was a likely relationship between the right knee disability and the post service left knee injury on the basis that the veteran's right knee would have been unstable at the time of the left knee injury. In fact, although the veteran asserts that his right knee gave out while skiing in 1980, he did not report to Dr. WRP at that time that his right knee had given out and his right knee was found to be stable in reports prior to and shortly after the accident. Therefore, the evidence is not persuasive that the veteran's right knee disability did, in fact, give out and cause the accident that resulted in the left knee injury. The veteran's lay witness observed the veteran fall to the right while skiing and noted that his right ski appeared to be going out that way. While this observation is competent, it does not change the fact that the veteran's knee was not shown to be actually productive of instability either shortly before or shortly after his fall. As for whether the left knee disorder was caused by additional stress from favoring the right knee, Dr. JFW felt that it was possible although uncertain given the number of injuries that the veteran had suffered to his knees. Dr. WRP supported the theory, and the VA examiner discounted it. The Board believes that the totality of the evidence supports the conclusion that the left knee injury was most consistent with the veteran's fall while skiing, not stress from favoring the knee. 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 service connection for a left knee disability as secondary to the service-connected residuals f a medial meniscectomy of the right knee with patellar tendon transfer. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for a left knee disability as secondary to the service-connected residuals of a medial meniscectomy of the right knee with patellar tendon transfer, the appeal is denied. REMAND The appellant has the right to submit additional evidence and argument on the matter or 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 or by the United States Court of Appeals for Veterans Claims (Court) 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. First and foremost, the veteran's VA examination of February 1999 established that degenerative changes of the right knee are part of the service-connected disability. Degenerative changes (arthritis) must be evaluated in terms of limitation of motion. Unfortunately, ranges of motion were not provided in terms of degree of arc in the examination report. Although the RO interpreted the examination report as showing full range of motion of the knee, full range of motion for the knee for VA purposes is defined by regulation as 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (1999). What the VA examiner stated on examination was that the veteran had "full" extension and that flexion was to approximately 10 inches from the heel to the buttocks. The examiner also noted that the veteran stated that he could not attain full flexion of the right knee in a squatting position and could not arise again after squatting. The Board cannot conclude that the veteran had full range of knee motion or ascertain the degree of limitation of motion without more precise measurement. In view of the absence of adequate findings, the Board must again remand the claim of entitlement to an increased evaluation for residuals of a medial meniscectomy of the right knee with patellar tendon transfer to the RO. In cases of evaluation of orthopedic disabilities there must be adequate consideration of functional impairment including impairment from painful motion, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). On reexamination, attention must be provided to ensure that functional limitation, including limitation of motion due to pain, is adequately considered. It is noted that the VA examiner stated that the veteran did not have loss of coordination or function due to the injury except for squatting. The VA examiner also stated that there was no manifestation or expression of pain but did not explain why the veteran could not flex his right knee all the way while squatting, why he could not arise again, and why he had minimal muscular atrophy of the right leg. In summary, the Board is of the opinion that a contemporaneous examination of the appellant as well as association with the claims file of any additional records of treatment that may have accumulated during the course of the appeal would materially assist in the adjudication thereof. Also, it is noted that the veteran's representative has asserted the applicability of entitlement to multiple evaluations pursuant to VAOPGCPREC 23-97. The VA General Counsel stated in that precedential opinion that there is no prohibition against assigning separate ratings for lateral instability or subluxation of the knees, and for arthritis of the knees. While the RO stated that the veteran has no more than moderate impairment of the knee (an apparent reference to Diagnostic Code 5257, which pertains to recurrent subluxation or lateral instability), the veteran's disability evaluation is assigned pursuant to Diagnostic Code 5258. That diagnostic code provides that a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. On remand, the RO should address the question of multiple ratings, pyramiding, Esteban v. Brown, 6 Vet. App. 259, 262 (1994), and General Counsel Opinion 23-97. The RO should specify with particularity whether the veteran's right knee disability is actually being evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5258, whether the veteran's disability is being rated by analogy to Diagnostic Code 5258, or whether the veteran is being evaluated in accordance with some other diagnostic code. Therefore, pursuant to VA's duty to assist the appellant in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999), the Board is deferring adjudication of the issue of entitlement to an increased evaluation for the service- connected disability of the right knee pending a remand of the case to the RO for further development as follows: 1. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA or non-VA, inpatient or outpatient, who may possess additional records pertinent to his claim. After obtaining any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all outstanding VA treatment reports. 2. The RO should arrange for a VA orthopedic examination of the veteran by an orthopedic surgeon or another appropriate specialist in order to ascertain the current nature and extent of severity of the service-connected right knee disability. Any further indicated special studies should be conducted. The claims file, copies of the criteria under 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. The examiner should record pertinent medical complaints, symptoms, and clinical findings, including specifically active and passive range of motion of the right knee recorded in degrees of arc. Functional limitations due to symptoms of the service-connected disability should be thoroughly evaluated. The examiner should then make an assessment of the severity of the disability in terms of the rating criteria pertaining to the knees, and comment on the functional limitations, if any, caused by the appellant's service connected disability in light of the provisions of 38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59. It is requested that the examiner provide explicit responses to the following questions: Does the service-connected disability involve only the bones, or does it also involve the muscles and nerves? Does the service connected disability cause objectively or objectively weakened movement, excess fatigability, and incoordination, and if so, can the examiner comment on the severity of these manifestations on the ability of the appellant to perform average employment in a civil occupation? If the severity of these manifestations can not be quantified, the examiner must so indicate. With respect to subjective complaints of pain, the examiner is requested to specifically comment on whether pain is visibly manifested on movement, the presence and degree of, or absence of, muscle atrophy attributable to the service connected disability, the presence or absence of changes in condition of the skin indicative of disuse due to the service connected disability, or the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service connected disability. The examiner is also requested to comment upon whether or not there are any other medical or other problems that have an impact on the functional capacity affected by the service connected disability, and if such overlap exists, the degree to which the nonservice connected problem creates functional impairment that may be dissociated from impairment caused by the service connected disability. If the functional impairment created by the nonservice connected problem can not be dissociated, the examiner should so indicate. Any opinions expressed must be accompanied by a complete rationale. 3. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. Stegall, 11 Vet. App. 268. 4. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issue of entitlement to an increased evaluation for residuals of a medial meniscectomy of the right knee with patellar tendon transfer, with consideration of all criteria to include 38 C.F.R. §§ 4.40, 4.45, 4.59. The RO should also document its consideration of the applicability of the criteria under 38 C.F.R. § 3.321(b)(1) (1999). If the benefit requested on appeal is not granted to the veteran's satisfaction, the RO should issue a Supplemental Statement of the Case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals