Citation Nr: 0005703 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 95-29 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for a right knee disorder for the period prior to October 24, 1996. 2. Entitlement to an increased rating for a right knee disorder, currently evaluated as 20 percent, from October 24, 1996. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Ferrandino, Associate Counsel INTRODUCTION The veteran had active service from February 1978 to June 1990. By rating decision in August 1990, service connection was granted for status post torn right medical meniscus. In September 1994, the veteran filed a claim for an increased rating for his service connected knee disability. This appeal arises from the December 1994 rating decision from the St. Petersburg, Florida Regional Office (RO) that continued the evaluation of the veteran's service connected status post torn right medial meniscus as 0 percent. A Notice of Disagreement was filed in February 1995 and a Statement of the Case was issued in August 1995. A substantive appeal was filed in August 1995 with no hearing requested. This case was remanded in September 1997 and in March 1998 for further development. The case was thereafter returned to the Board. The evaluation of the veteran's service connected right knee disability was increased from 0 percent to 10 percent, effective October 24, 1996, by rating decision in January 1997, and increased from 10 percent to 20 percent, effective October 24, 1996, by rating decision in September 1998. In December 1998, the veteran indicated that he was continuing his appeal of the increased evaluation back to the date of his claim in September 1994. The RO has considered this as a request for entitlement to an earlier effective date; however, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the issues on appeal are those listed on the title page of this decision. Additional issues for which a notice of disagreement has been filed are the subjects of the Remand decision below. FINDINGS OF FACT 1. The veteran's claim for an increased rating is plausible, and all relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. For the period prior to October 24, 1996, the veteran's service-connected right knee disorder was manifested by pain and tenderness but no instability or limitation of motion. 3. For the period effective from October 24, 1996, the veteran's service-connected right knee disorder was manifested by the presence of degenerative arthritis of the right knee with functional limitation of extension to 20 degrees but no instability. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating of 10 percent for a right knee disorder for the period prior to October 24, 1996 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes 5003, 5256, 5257, 5258, 5260, 5261 (1999). 2. The criteria for the assignment of a rating of 30 percent a right knee disorder for the period effective from October 24, 1996 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes 5003, 5256, 5257, 5258, 5260, 5261 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's service medical records show that he had an injury of the right knee that resulted in a torn meniscus of the right knee. By rating action of August 1990, service connection for status post torn right medial meniscus was granted and a noncompensable evaluation was assigned. In September 1994, the veteran filed a claim for an increased rating for a right knee disability. Associated with the file were VA outpatient records from September 1992 to September 1994 that show that in September 1992, the veteran had an arthroscopy of the right knee. The examination of the knee showed no swelling or effusion. The range of motion was from 0 to 120 degrees. There was minimal joint line tenderness and there was no obvious laxity. Under diagnoses, right medial meniscus was noted. By rating action of December 1994, the evaluation of the veteran's service connected status post torn right medial meniscus, currently 0 percent, was continued. The current appeal to the Board arises from this action. On a VA examination in July 1995, the veteran complained of pain in the right knee. The gait was normal. VA outpatient treatment records from April 1995 to June 1995 show that in April 1995, the veteran was seen with complaints of persistent pain of the right knee for six months. He denied decreased tolerance for prolonged standing or walking. He was status post a medical meniscectomy. On examination of the right knee, there was full range of motion. There was no instability. The impression was status post medial meniscectomy and the veteran was referred for an orthopedic consultation. In June 1995, the veteran was seen with complaints of persistent right knee pain. He had a history of derangement of the lateral meniscus. VA outpatient records from September 1995 to October 1996 show that an orthopedic consultation in September 1995 shows that the veteran had a new MRI that showed no more tears. On examination, the range of motion was full. The right knee was tender medially. The impression included osteoarthritis of the right knee. He was given a brace. An additional record from September 1995 shows that jumping, running, carrying greater than 50 pounds, and standing for more than two hours aggravated his knee symptoms. A record from December 1995 shows that the veteran was seen with chronic right knee pain. The assessment included chronic knee pain secondary to degenerative joint disease. In February 1996, the veteran was seen with a history of right knee pain. An MRI showed grade II degeneration of the lateral meniscus. There was no definite tear. He was status post a medial meniscectomy. Right knee x-rays from 1995 were negative. On examination, the veteran was ambulating well with a prosthetic brace for the right knee. The knee was nontender. Drawer and Lachman's were negative. The impression included history of degenerative joint disease. In April 1996, the veteran was seen with complaints of persistent pain of the right knee. He had a history of degeneration. The diagnoses included osteoarthritis of the right knee. In July 1996, the veteran was seen with complaints of pain of the right knee. There was no give way, locking, or effusion. On examination, the right knee was tender medially. It was stable anterior, posterior, medially, and laterally. There were degenerative changes of the right knee. The impression included osteoarthritis of the right knee. In October 1996, it was noted that an MRI was negative. It was noted that the veteran could go back to work with a brace on if necessary. He should not stand more than two hours at a time. He should not lift more than 50 pounds. Additionally noted was that the veteran should not do stairs, squatting or jumping for six months. On a VA examination in November 1996, the veteran reported that his right knee would swell and give out. He had no falls and no locking. On examination, the veteran was wearing a large brace over the right knee. The flexion of the right knee was to 80 degrees with marked limitation of flexion. Extension was completed to 0 degrees. The patella reflexes were 2+ and Achilles reflex was not found. The veteran had no edema and no effusion. An Apley test was negative for pain. He favored his right knee when walking. The x-rays from April 1996 were essentially normal. The diagnoses included degenerative joint disease of the right knee. By rating action of January 1997, the evaluation of the veteran's status post torn right medial meniscus was increased to 10 percent effective October 24, 1996, the date the VA examination was prepared to be scheduled. In September 1997, a letter from the RO was sent to the veteran at an address of record requesting names and addresses of all medical care providers who treated the veteran for a right knee disability. On a VA examination in June 1998, the veteran complained of swelling and pain with prolonged standing. He reported some vague areas of pain both medial and lateral and above and below the patella. He reported that the pain limited his duration of ambulation and standing despite wearing a knee brace at all times. He reported that his symptoms were constant and resulted in increasing pain with increasing activity, but otherwise he did not have flare-ups with further decrease in range of motion or incoordination or fatigability. He reported that occasionally his knee gave out, but he did not fall and was able to walk despite the pain. On examination, the veteran ambulated slowly with a slight limp of the right leg. On palpation, there was bony pain medial to the patella. There was no effusion or edema. There was no crepitation to palpation. There was no instability to anterior, posterior, medial, or lateral stress. The veteran had flexion to 110 degrees and extension to 20 degrees actively and passively with guarding beyond 20 degrees secondary to the reported medial pain. He had weakened flexion and extension which he reported was secondary to guarding secondary to the pain. There was no evidence of dislocated cartilage. There was no evidence of locking or pain within the limits of 20 and 110 degrees of range of motion. The range of motion was both active and passive. The x-rays of June 1998 were normal. An MRI revealed degenerative lateral meniscus without evidence of tear and presence of a small effusion. The assessment included degenerative meniscus of the right knee with decreased range of motion to 110 degrees of flexion and approximately 20 degrees of extension, although with ambulation, extension was closer to 10 degrees. The symptoms were constant without specific flare-ups, but the veteran did exhibit weakened movement secondary to pain. He was able to ambulate and get on and off the examining table without assistance. The veteran's disability did seem to limit his functional ability to a constant level described in the range of motion above without further limitation during flare-ups. There was no evidence of instability or dislocated cartilage. By rating action of September 1998, the evaluation of the veteran's service connected right knee disorder was increased to 20 percent, effective October 24, 1996. VA outpatient records from June 1998 to March 1999 show that in September 1998, the veteran was seen regarding complaints of pain of the right knee. In October 1998, an x-ray of the right knee showed degenerative joint disease. A notation from March 1999 shows that the veteran was suffering from early traumatic arthrosis of the right knee. He was advised to refrain from frequent kneeling and squatting, climbing steps, and prolonged standing in the same position. II. Analysis Initially, the Board finds the veteran's claim for increased compensation benefits is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Court has held that, when a veteran claims a service connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Furthermore, after reviewing the record, the Board is satisfied that all relevant facts have been properly developed. Thus, no further assistance to the veteran is required to comply with the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a). It was noted in a prior Remand that a letter to the veteran regarding obtaining additional treatment records for a right knee disability was sent to a Tampa, Florida address rather than a St. Petersburg address, and that this may be an incorrect address. The undersigned notes that the veteran has both the Tampa, Florida address to which the letter was sent and a St. Petersburg, Florida address of record; and the letter to the Tampa, Florida address was not returned as undeliverable, therefore, the duty to assist in this regard is satisfied. Under applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. §§ 4.1 and 4.2. Also, 38 C.F.R. § 4.10 provides that, in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon the person's ordinary activity. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report, and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 594. In DeLuca v. Brown, the Court held that in evaluating a service-connected disability involving a joint, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court held that Diagnostic Codes pertaining to range of motion do not subsume 38 C.F.R. § 4.40 and § 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flare-ups or when the joint is used repeatedly over time. The Court also held that the examiner should be asked to determine whether the joint exhibits weakened movement, excess fatigability, or incoordination. If feasible, these determinations were to be expressed in terms of additional range of motion loss due to any pain, weakened movement, excess fatigability or incoordination. When there is a question as to which of two 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. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that a service-connected disability may be assigned separate disability ratings under more than one diagnostic code, as long as none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other conditions. See Esteban v. Brown, 6 Vet. App. 259, 261-262 (1994). In a precedent opinion, the VA General Counsel held that separate ratings are available for disabilities manifested by instability of the joint (rated under Diagnostic Code 5257) and limitation of motion (rated under Diagnostic Codes 5260 and 5261). See VAOPGCPREC 23-97. The appellant's service-connected right knee disability is currently rated under Diagnostic Code 5257, which pertains to other impairment of the knee and recurrent subluxation or lateral instability. Under this code, a disability evaluation of 10 percent is warranted when there is slight impairment or recurrent subluxation or lateral instability. An evaluation of 20 percent is assigned when there is moderate impairment or recurrent subluxation or lateral instability. An evaluation of 30 percent is assigned when there is severe impairment or recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of joint affected by limitation of motion, to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999). Ratings pertaining to limitation of motion include the following: Diagnostic Code 5256 relates to ankylosis of the knee. Under this code, ankylosis of the knee in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent evaluation. Ankylosis of the knee in flexion between 10 degrees and 20 degrees warrants a 40 percent evaluation. Ankylosis of the knee in flexion between 20 degrees and 45 degrees warrants an evaluation of 50 percent. Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more warrants an evaluation of 60 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (1999). Diagnostic Code 5258 relates to semilunar cartilage, dislocated with frequent episodes, of "locking", pain, and effusion into the joint. Under this code, a 20 percent evaluation is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (1999). Removal of semilunar cartilage, symptomatic is rated as ten percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (1999). Diagnostic Code 5260 relates to evaluations for limitation of flexion of the leg. Under this code, a noncompensable evaluation is assigned when flexion is limited to 60 degrees. When flexion is limited to 45 degrees, a 10 percent evaluation is assigned. When flexion is limited to 30 degrees, a 20 percent rating is assigned. When flexion is limited to 15 degrees a 30 percent evaluation is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (1999). Diagnostic Code 5261 relates to evaluations for limitation of extension of the leg. Under this code, a noncompensable evaluation is assigned when extension is limited to 5 degrees. When extension is limited to 10 degrees, a 10 percent evaluation is assigned. When extension is limited to 15 degrees a 20 percent evaluation is assigned. When extension is limited to 20 degrees, a 30 percent evaluation is assigned. When extension is limited to 30 degrees, a 40 percent evaluation is assigned. When extension is limited to 45 degrees, a 50 percent evaluation is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (1999). The veteran is assigned a 0 percent evaluation for a right knee disorder under Diagnostic Code 5257 prior to October 24, 1996. VA records show that the veteran had full range of motion but complaints of pain. As such, the Board finds that a 10 percent rating is warranted as analogous to symptomatic residuals of removal of semilunar cartilage under Diagnostic Code 5259. The 10 percent rating under Diagnostic Code 5259 includes pain. Moreover, as there was no evidence prior to October 24, 1996 of a dislocated semilunar cartilage with frequent episode of locking, pain and effusion into the joint, a 20 percent rating under Diagnostic Code 5258 is not warranted. Consideration has also been given to the codes pertaining to limitation of motion. However, no limitation of motion was found. Any functional loss due to pain is incorporated into the ten percent rating being assigned under Diagnostic Code 5259. Finally, there was no evidence of instability during the time period under discussion. Accordingly, a 10 percent rating and no greater is warranted prior to October 24, 1996. The veteran is assigned a 20 percent evaluation for a right knee disorder under Diagnostic Code 5257 from October 24, 1996. The June 1998 VA examination shows that the veteran had no instability. Range of painless motion was from 20 degrees of extension to 110 degrees of flexion, free of pain. In view of the fact that there was pain at 20 degrees of extension, the Board finds that there is functional limitation of extension such as to warrant a thirty percent rating under Diagnostic Code 5261. A higher evaluation is not warranted as there is no evidence of functional loss greater than that provided by the 30 percent rating. Additionally, as there is no showing that the veteran has instability of the right knee, there is no need to consider whether a separate rating should be assigned for instability and arthritis with limitation of motion under VAOPGCPREC 23- 97. In addition to considering pain on motion, the Board has considered the other requirements set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995). On the June 1998 VA examination, the examiner indicated that the veteran did not have specific flare-ups. He did have weakened movement and fatigability secondary to pain. This has been considered in the increased rating assigned the left knee disability. ORDER Entitlement to a 10 percent rating for a right knee disorder, prior to October 24, 1996 is granted, subject to the criteria governing the payment of monetary awards. Entitlement to a 30 percent rating for a right knee disorder, from October 24, 1996, is granted, subject to the criteria governing the payment of monetary awards. REMAND The Board notes that the veteran filed a Notice of Disagreement in August 1995 to a July 1995 rating action that denied increased evaluations for service connected postoperative resection, Haglund's deformity, right foot and calcaneal spur, left heel. The filing of a Notice of Disagreement puts a claim in appellate status, and this claim must be considered in connection with the current appeal. Accordingly, the case is REMANDED to the RO for the following: The RO should furnish the veteran with a statement of the case on the issue of entitlement to an increased evaluation for service connected postoperative resection, Haglund's deformity, right foot and calcaneal spur, left heel. If a substantive appeal is filed, these issues should be returned to the Board for continuation of appellate review. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. 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. Iris S. Sherman Member, Board of Veterans' Appeals