Citation Nr: 0002411 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 98-09 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for chronic lymphocytic leukemia, secondary to the service connected rupture of the medial meniscus of the right knee. 2. Entitlement to an increased evaluation for a rupture of the medial meniscus of the right knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Cain, Associate Counsel INTRODUCTION The veteran had active service from October 1960 to October 1964. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a rating decision by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied secondary service- connection for chronic lymphocytic leukemia and an increased evaluation for a rupture of the meniscus of the right knee. FINDINGS OF FACT 1. All the evidence necessary for an equitable disposition of the veteran's claim for an increased rating has been developed. 2. The record does not contain competent evidence of a nexus between the veteran's chronic lymphocytic leukemia and his rupture of the meniscus of the right knee. 3. The veteran's service connected rupture of the medial meniscus of the right knee is manifested by tenderness over his patellar tendon and over the medial joint, mild patellar tendinitis, and a small flap tear of a medial meniscus; it is not productive of more than slight knee impairment with recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for chronic lymphocytic leukemia, claimed as secondary to a rupture of the medial meniscus of the right knee, is not well grounded. 38 U.S.C.A. §§ 5107 (West 1991); 38 C.F.R. § 3.310 (a) (1999). 2. The criteria for an evaluation in excess of 10 percent for the veteran's rupture of the medial meniscus of the right knee are not met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4 §§ 4.40, 4.71a Codes 5257, 5260, 5261 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Secondary Service Connection for Chronic Lymphocytic Leukemia The threshold question that must be resolved regarding each claim is whether the veteran has presented evidence that each claim is well grounded; that is, that each claim is plausible. If he or she has not, the appeal fails as to that claim, and the Board is under no duty to assist him or her in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The United States Court of Appeals for Veterans Claims (Court) has held that a well grounded claim is comprised of three specific elements: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability, as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table). In the absence of any one of these three elements, the Board must find that a claim for service connection is not well grounded and therefore must be denied, pursuant to the decision of the Court in Edenfield v. Brown, 8 Vet. App. 384 (1995). Generally, competent medical evidence is required to meet each of the three elements. However, for the second element, the kind of evidence to make a claim well grounded depends upon the types of issues presented by the claim. Grottveit v. Derwinski, 5 Vet. App. 91, 92-93 (1993). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnosis, competent medical evidence is required. Id. at 93. To establish a well-grounded claim for secondary service connection, a veteran must present medical evidence of a current disability and, credible, i.e. satisfactory evidence that his service connected disorder caused his current disability. Credible evidence as to causation requires competent medical evidence. Libertine v. Brown, 9 Vet. App. 521, 524 (1996). For the reasons discussed below, the Board finds that the veteran's claim for service connection for chronic lymphocytic leukemia, secondary to the service connected rupture of the medial meniscus of the right knee is not well grounded. Where a claim is not well grounded it is incomplete, and the VA is obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application. Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). In this case, the RO informed the veteran of the necessary evidence in its notice of rating decision and in the statement of the case. The discussion below informs the veteran of the types of evidence lacking, and which he should submit for a well-grounded claim. Unlike the situation in Robinette, in this case the veteran has not advised VA of the existence of any particular evidence, which, if obtained, would render his claim well grounded. Concerning the first element -- evidence of current disability as provided by a medical diagnosis -- the record contains VA medical records from August 1995 to December 1997 that indicate the veteran has chronic lymphocytic leukemia. This satisfies the first element of a well-grounded claim. As for the second element -- evidence of incurrence or aggravation of a disease or injury in service - the service- connected rupture of the medial meniscus of the right knee would satisfy this element for a claim for secondary service connection. The veteran's problem with presenting a well-grounded service-connection claim secondary to his service connected rupture of the medial meniscus of the right knee arises with the submission of credible evidence that his service connected disorder caused his chronic lymphocytic leukemia. The record does not contain competent medical evidence that suggests the veteran's rupture of the medial meniscus of the right knee caused his chronic lymphocytic leukemia. Thus, the veteran's claim for service connection for chronic lymphocytic leukemia, secondary to the service connected rupture of the medial meniscus of the right knee, is not well grounded. The veteran's representative has argued that the record contains an April 1998 medical statement that says that "Gout and gout-like syndrome can be secondary to leukemia." The Board notes, however, that service connection is not in effect for gout. II. Increased Evaluation for a Rupture of the Medial Meniscus of the Right Knee The veteran has presented a well grounded claim for an increased disability evaluation for his service connected disability within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where the veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service connected disorder had been considered by VA, he established a well grounded claim for an increased rating.) It has not been shown that additional relevant evidence exists that is not of record. The Board is satisfied that there is no further duty of VA to assist the veteran in the development of his claim under 38 U.S.C.A. § 5107 (West 1991). The Board must determine whether the weight of the evidence supports the veteran's claim or is in relative equipoise, with him prevailing in either event. However, if the weight of the evidence is against his claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 4.3(1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are based on the average impairment of earning capacity resulting from the disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Although the Board must consider the whole record, 38 C.F.R. § 4.2 (1999), where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. Therefore, those documents created in proximity to the recent claim are the most probative in determining the current extent of impairment. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The evaluation assigned for service connected disability is established by comparing the manifestations reflected by the recent medical findings with the criteria in the VA's SCHEDULE FOR RATING DISABILITIES (SCHEDULE), codified in C.F.R. Part 4 (1999). The veteran's service medical records from 1964 indicated that he suffered from a right knee injury in service. An October 1965 VA examination report indicates that he did not have instability of the cruciate or collateral ligaments and contains a diagnosis of rupture of the medial meniscus of the right knee. Based on in service incurrence and an October 1965 VA examination report, the RO granted service connection in December 1965 for a rupture of the medial meniscus of the right knee and assigned a 10 percent disability evaluation by analogy under Diagnostic Code 5257. See 38 C.F.R. §§ 4.20, 4.27. Under Diagnostic Code 5257,a knee impairment, involving recurrent subluxation or lateral instability, is rated 30 percent when severe, 20 percent when moderate, and 10 percent when slight. The Board finds that an increased disability evaluation in this case is not warranted. Based on the evidentiary finding of record the veteran's rupture of the medial meniscus of the right knee results in not more than slight knee impairment, involving recurrent subluxation or lateral instability. Following an October 1969 VA examination report that indicated that there was no objective evidence of organic disease of the knee joint, a December 1969 rating decision reduced the rating to a noncompensable level, effective from March 1970. This rating remained in effect until an April 1990 rating decision that assigned a 10 percent rating, again by analogy under Diagnostic Code 5257, effective from September 1989. This rating was based on VA treatment records that showed that the veteran was receiving physical therapy for the knee on a regular basis. This 10 percent rating has since remained in effect. A VA examination report from April 1991 indicated that the veteran's walk showed unremarkable gait pattern. He exhibited range of motion from 0 to 140 degrees. He had a well-healed laceration scar over the area of the medial joint line, which was approximately 1 inch in length. There was no redness, heat, or swelling of the knee. However, there was significant tenderness to palpation over the medial joint line of the right knee. There was no instability demonstrated. He performed a satisfactory heel to toe walk. He was able to perform a full squat and arise again. His right knee pain was exacerbated by changes in the weather. The impression was of a history of right knee injury- degenerative disease of the right knee-rupture of medial meniscus. An April 1991 VA radiological report, however, indicated that the veteran's right knee had normal joint space and bone. VA Medical records from June 1997 to February 1998 indicated that the veteran was being treated for his right knee pain along with other ailments. A VA radiologic report dated in January 1998 indicated that the alignment and mineralization of his right knee and joint spaces in his right knee were normal. There was no effusion found. A January 1998 VA examination report indicated that the veteran complained that his knee hurt along the medial border and seemed to slip on him. He wore a reinforced neoprene knee sleeve. He began using a cane about one or two years ago because his knee felt like it was going to give out on him or slip on him. Upon examination he could heel walk, toe walk, and do a half squat. Upon flexion and extension there was no crepitation in his knees. He had good reflexes in his knees and ankles. His knees were stable in the AP and medial to lateral planes. The range of motion of his knee was from 0 to 120 degrees. AP and lateral x-rays of his right knee were negative. He had some tenderness over his patellar tendon at the attachment of the patellar tendon to the inferior pole of the patella. There was also tenderness over the medial joint line, but the examiner could not feel actual blockage. The examiner could feel some slippage of the medial semilunar cartilage on his left knee. It was also noted that he might have two problems with his knee -- mild patellar tendinitis, which may be related to his gout, and probably a small flap tear of his medial meniscus. Based on the evidence in this case the veteran is adequately rated as 10 percent disabled under Diagnostic Code 5257. The evidence noted above indicated that the veteran's knee disability resulted in no more than slight knee impairment with recurrent subluxation or lateral instability. It is noteworthy that a veteran can receive separate disability ratings unless the conditions constitute the "same disability" or the "same manifestation" under 38 C.F.R. § 4.14 (1999). See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Diagnostic Code 5260 provides a 10 percent rating for limitation of flexion of the leg to 45 degrees, with higher ratings for greater limitation of flexion. Diagnostic Code 5261 provides a 10 percent rating for limitation of extension of the leg to 10 degrees, with higher ratings for greater limitation of flexion. In this case, the veteran does not have limitation of motion in his right knee that would warrant the assignment of a separate compensable rating. For example, the report of his last VA examination, which was in January 1998, describes the range of motion in his right knee from 0 to 120 degrees. Residual superficial scarring resulting from the injury must be poorly nourished with repeated ulceration, or tender and painful on objective demonstration for a 10 percent rating. 38 C.F.R. Part 4, § 4.117, Diagnostic Codes 7803, 7804 (1999). Scars, other than disfiguring facial scars, residuals of second or third degree burns, or scars that are poorly nourished, etc., are rated on limitation of function of the part affected. 38 C.F.R. § 4.118, Part 4, Diagnostic Code 7805 (1999). There is evidence that the veteran does have scarring. However, there is no evidence of record that scarring has been shown to result in functional impairment warranting a separate rating under Diagnostic Code 7805, and there is no objective evidence that indicates he had a scar that was poorly nourished with ulceration or tender and painful on objective demonstration, which would warrant a separate 10 percent rating under Diagnostic Codes 7803 or 7804, respectively. It is recognized that disabilities of the musculoskeletal system are primarily the inability, due to damage or an infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (1999). Functional impairment due to pain must therefore, be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Factors to consider, listed in 38 C.F.R. § 4.45, include less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; and 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. The January 1998 VA examination report indicated that the veteran did have slippage at the medial cartilage on flexion and extension of his knee, but the examination report did not indicate that he had excess fatigability, deformity, atrophy of disuse, or other manifestations that might demonstrate additional functional impairment with his low back disability. Thus, the veteran does not qualify for a higher evaluation under the DeLuca principles. In Floyd v. Brown, 9 Vet. App. 88 (1996), the Court held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the laws and regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or from reaching such a conclusion on its own. Moreover, the Court did not find the Board's denial of an extraschedular rating in the first instance prejudicial to the veteran, as the question of an extraschedular rating is a component of the appellant's claim and the appellant had full opportunity to present the increased-rating claim before the RO. Consequently, the Board will consider whether this case warrants the assignment of an extraschedular rating. In exceptional cases where schedular evaluations are found to be inadequate, consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities" is made. 38 C.F.R. § 3.321(b)(1) (1999). The governing norm in these exceptional cases 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. Id. The Board first notes that the rating schedular in this case is not inadequate, as it provides for ratings up to 60 percent for disability of the knee and leg, see 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. The required manifestations for the assignment of a higher rating, however, are not shown in this case. Second, the Board finds no evidence of an exceptional disability picture in this case. The veteran has not required frequent hospitalization or treatment for his right knee disorder. Nor is there objective evidence that the disorder otherwise so markedly interferes with employment as to render impractical the application of regular schedular standards. Therefore, the Board concludes that the veteran is adequately compensated by application of regular schedular standards and that extraschedular consideration under 38 C.F.R. § 3.321(b) is not warranted in this case. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 4.3 (1999). ORDER Service connection for chronic lymphocytic leukemia, secondary to the service connected rupture of the medial meniscus of the right knee, is denied. The assignment of a higher disability evaluation for a rupture of the medial meniscus of the right knee is denied. MARY GALLAGHER Member, Board of Veterans' Appeals