Citation Nr: 0003387 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 95-33 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased rating for postoperative ligament tear, left knee, currently rated as 10 percent disabling. 2. Entitlement to an increased rating for service-connected postoperative left knee, crepitation/chondromalacia/degenerative joint disease, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Michael P. Vander Meer, Counsel INTRODUCTION The veteran served on active duty from October 1988 to December 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions, the latest of which was entered in May 1999, of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appeal was last before the Board in June 1997, at which time it was remanded for further development. Following completion of the requested development, the RO, in a rating decision entered in May 1999, awarded a separate 20 percent rating in consideration of left knee disability, inclusive of chondromalacia, the latter comprising the second issue listed on the title page. A Supplemental Statement of the Case was mailed to the veteran in May 1999. Thereafter, the appeal was returned to the Board. Included as an issue on appeal when this case was last before the Board was the issue of entitlement to service connection for right knee disability. However, such benefit was granted in a rating decision entered in December 1998. Therefore, the present appeal is limited to consideration of the issues stated on the title page. FINDINGS OF FACT 1. Current manifestations of the veteran's service-connected postoperative anterior cruciate ligament tear, left knee, include laxity involving such ligament and the giving way of the knee on occasion, productive, collectively, of moderate overall impairment. 2. Current manifestations of the veteran's service-connected postoperative left knee, crepitation/chondromalacia/degenerative joint disease, include painful motion; an ability to flex the left knee to 130 degrees exists. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for postoperative anterior cruciate ligament tear, left knee, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 5257 (1999). 2. The criteria for a rating in excess of 20 percent for postoperative left knee, crepitation/chondromalacia/degenerative joint disease, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45 and Part 4, Diagnostic Codes 5010, 5260 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that each of the veteran's claims is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that each claim is plausible. The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). Service connection is in effect for postoperative anterior cruciate ligament tear, left knee, for which the RO has assigned a 10 percent rating in accordance with the provisions of Diagnostic Code 5257 of the Rating Schedule; and for postoperative left knee, crepitation/chondromalacia/degenerative joint disease (DJD), rated as 20 percent disabling under Diagnostic Codes 5010- 5260. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 (1993), and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the evidence of record pertaining to the history of the left knee disability for which entitlement to an increased rating is asserted. The Board has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of the remote clinical histories and findings pertaining to such disability. I. Postoperative Ligament Tear, Left Knee Pursuant to Diagnostic Code 5257, knee impairment manifested by recurrent subluxation or lateral instability of "[s]light" overall severity warrants a 10 percent rating; if such impairment is of "[m]oderate" overall severity, a 20 percent rating is warranted. The veteran contends, in substance, relative to his service- connected postoperative anterior cruciate ligament tear, left knee, that such disability is more severely disabling than currently evaluated. In this regard, when he was examined by VA in November 1995, the veteran, in addition to alluding to the past surgical repair of an anterior cruciate ligament which he had torn in his left knee in service, complained of worsening pain and instability involving the knee. On physical examination, lateral instability and crepitus were noted on motion in the left knee. The veteran exhibited an ability to flex and extend his left knee to 130 and zero degrees, respectively. The pertinent examination diagnosis implicated post-surgical repair, left knee, with pain and instability. In March 1998, the veteran complained of experiencing "popping" and giving way in his left knee. Lachman's testing was positive, and arthroscopic surgery was deemed to be warranted. Such surgery was accomplished, under VA auspices, in May 1998. When he was examined by VA in July 1998, the veteran indicated that his left knee had continued to give way despite the May 1998 surgery, and that the knee was frequently unstable. Findings on physical examination included medial laxity in the left knee as well as crepitus. The veteran exhibited an ability to flex and extend his left knee to 98 and zero degrees, respectively. The pertinent examination diagnosis implicated "moderate" overall functional loss involving the left knee. When the veteran was seen by VA in August 1998, at which time he complained of experiencing left knee pain, findings on examination included Lachman's testing which was negative; laxity involving the anterior cruciate ligament was also noted. The veteran exhibited an ability to flex and extend his left knee to 130 and zero degrees, respectively. In considering the veteran's claim for an increased rating for his service-connected postoperative anterior cruciate ligament tear, left knee, the Board is of the opinion, in light of the reasoning advanced hereinbelow, that such service-connected disability is productive of '[m]oderate' overall impairment, which degree of disablement is commensurate with a 20 percent rating under the provisions of Diagnostic Code 5257. In this regard, the VA examiner in July 1998 indicated that overall functional loss involving the veteran's left knee was 'moderate' in degree. In addition, notwithstanding the arthroscopic surgery performed in May 1998, the veteran was noted to yet have laxity involving his anterior cruciate ligament in the left knee when he was seen by VA only three months later, i.e., in August 1998. In view of the foregoing, then, an increased disability rating, to 20 percent, is granted for the veteran's service-connected postoperative anterior cruciate ligament tear, left knee. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, Diagnostic Code 5257. On further consideration, however, of the matter of whether a yet higher disability evaluation (i.e., in excess of 20 percent) is in order, the Board is readily persuaded that it is not. In making such determination, the Board would point out that, while Lachman's testing, relative to the left knee, was positive when the veteran was seen by VA in March 1998, such testing was negative on the occasion of his presentation to VA in August 1998. In addition, while the veteran could flex his left knee to only 98 degrees when he was examined by VA in July 1998, flexion was exhibited to 130 degrees, representative of motion in such excursion which is only 10 degrees less than full, see 38 C.F.R. § 4.70, Plate I (1999), on the occasion of the veteran's presentation for VA outpatient treatment in August 1998. II. Increased Rating, Postoperative Left Knee, Crepitation/Chondromalacia/DJD Under the law, pursuant to Diagnostic Codes 5010 and 5260, the evaluation of the veteran's postoperative left knee, crepitation/chondromalacia/DJD, turns on the degree to which motion in the joint is limited. In accordance with Diagnostic Code 5260, limitation of flexion involving a leg to 30 and 15 degrees warrants ratings of 20 and 30 percent, respectively. As was noted by the Board hereinabove, when he was examined by VA in July 1998, the veteran exhibited an ability to flex and extend his left knee to 98 and zero degrees, respectively. When he was seen by VA in August 1998, at which time he complained of experiencing left knee pain, he exhibited an ability to flex and extend his left knee to 130 and zero degrees, respectively. Owing to painful motion involving the veteran's left knee joint, the RO, apparently based on the pertinent rationale advanced in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991), assigned a 20 percent rating for his postoperative left knee, crepitation/chondromalacia/DJD, in a rating decision entered in May 1999. Without evidence, however, of left knee flexion being limited to 15 degrees, as is necessary for the assignment of a 30 percent rating under Diagnostic Code 5260 (or of left knee extension being limited to 20 degrees, as is necessary for the assignment of a 30 percent rating under Diagnostic Code 5261), the Board is readily persuaded that a disability rating in excess of 20 percent for the veteran's service-connected postoperative left knee, crepitation/chondromalacia/DJD, is clearly not in order. In reaching the foregoing determination, the Board has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45, as pertinent to factors, traceable to service-connected disability involving the left knee, including general functional loss, weakened movement and excess fatigability. The Board has also been attentive for indication of loss of functional ability, within the purview of 38 C.F.R. § 4.40, specifically traceable to pain on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Board finds it noteworthy that, on the occasion of the veteran's July 1998 VA examination, he indicated that he could walk, albeit with pain in the knee, up to a distance of perhaps two miles. The foregoing consideration, in the Board's view, militates persuasively against the existence of sufficient disablement, relative to the all aspects of non-ligamental pathology involving the veteran's left knee, as to warrant the assignment of a higher disability rating predicated on either 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45. The Board has also given consideration to the provisions of 38 C.F.R. § 4.7, which provide that, where there is a question as to which of two evaluations should be assigned, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. However, the record does not show that the actual manifestations of the above- cited left knee disability (i.e., that involving non- ligamental pathology) more closely approximate those required for a 30 percent rating than they do the disability rating currently assigned either ankle. Accordingly, the Board is unable to identify a reasonable basis for a grant of this aspect of the benefit sought on appeal. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45 and Part 4, Diagnostic Codes 5010, 5260. ORDER An increased rating for postoperative ligament tear, left knee, is granted, to the extent indicated, subject to the controlling regulations governing monetary benefits. An increased rating for postoperative left knee, crepitation/chondromalacia/DJD, is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals