BVA9505182 DOCKET NO. 93-12 172 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for post-operative residuals of right knee disability. 2. Entitlement to an evaluation in excess of 10 percent for lumbosacral disc narrowing. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active service from June 1969 to March 1973. This appeal arises from a May 1991 Department of Veterans Affairs (VA) Phoenix, Arizona, Regional Office (RO) rating action that, in addition to another determination, confirmed and continued a 10 percent rating for right knee disability and a noncompensable rating for disability of the lumbar spine, and denied service connection for post traumatic stress disorder(PTSD). Based on the May 1992 hearing officer's decision, the RO, in a February 1993 rating action, confirmed and continued the 10 percent rating for right knee disability, awarded a 10 percent rating for disability of the lumbar spine and granted service-connection for PTSD. The RO considered the award of 10 percent for disability of the lumbar spine, and service-connection for PTSD as a grant of the benefits requested, and limited the appeal to the Board to the issue of entitlement to an increased rating for residuals of an arthrotomy of the right knee. The Board concurs that the award of service connection for PTSD was a grant of the benefit requested, but disagrees that the award of a 10 percent evaluation for lumbosacral disk narrowing was the maximum available benefit. In a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less that the maximum available benefit is awarded. AB v. Brown, 6 Vet.App. 35 (1993). There is nothing in the record to show that the veteran expressly stated that he was only seeking a 10 percent rating for the lumbar spine disability. Further, there is no written withdrawal of this issue under 38 C.F.R. § 20.204 (1994). Therefore, the Board will consider both increased rating issues on appeal. The May 1991 rating action also denied service connection for arthritis of the right knee and lumbar spine. The veteran was notified of this denial, and his appellate rights in writing that same month. A notice of disagreement was not timely filed in regard to this issue, and the determination became final. Statements made by the veteran's representative, in September 1993, have been construed as raising the issue of entitlement to service connection for arthritis of the right knee. The RO's attention is directed to this issue for action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred in not finding that the evidence of record supports increased ratings for his right knee and lumbar spine disabilities. He reports restricted movement and pain in his back since the injury in service, and limitation of motion, locking and pain in the right knee. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an increased rating for the post-operative residuals of right knee disability, and that the preponderance of the evidence supports a 20 percent evaluation for lumbosacral disc narrowing. FINDINGS OF FACT 1. Evidence sufficient for an equitable disposition of this appeal has been obtained by the RO. 2. The service-connected post-operative residuals of right knee disability are principally manifested by complaints of pain, locking, crepitus and pain on both flexion and extension, and mild effusion of the right knee joint; full range of motion on objective demonstration, and X-ray studies of the right knee reflecting osteochondritis dissecans of the medial femoral condyle, disease of the right knee joint; indicative of no more than mild impairment. 3. The service-connected lumbosacral disc narrowing is principally manifested by complaints of pain and limitation of motion, without objective evidence of neurologic involvement, tenderness, muscle spasm, abnormal mobility on forced motion, positive Goldthwait's sign, or listing of the spine to the opposite side. 4. The limitation of motion of the lumbar spine is not more than moderate. 5. The veteran has not submitted evidence tending to show that his right knee and lumbar disc disorders are unusual, require frequent periods of hospitalization or cause unusual interference with work other than that contemplated within the schedular standards. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for post-operative residuals of right knee disability have not been met. 38 C.F.R. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.7, 4.71, Diagnostic Codes 5259, 5258 (1994). 2. An evaluation of 20 percent for lumbosacral spine disc narrowing is warranted. 38 C.F.R. §§ 1155, 5107(a)(b) (West 1991); 38 C.F.R. § 4.71, Diagnostic Codes 5293, 5292 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1994). When there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (1994). Right Knee Disability Removal of the semilunar cartilage, symptomatic, warrants a 10 percent evaluation, which is maximum, under 38 C.F.R. § 4.71, Diagnostic Code 5259 (1994). Dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, warrant a 20 percent evaluation, which is maximum under 38 C.F.R. § 4.71, Diagnostic Code 5258 (1994). Knee disability can also be rated on the basis of limitation of motion. When flexion is limited to 15 degrees, or extension is limited to 20 degrees, a 30 percent rating is assigned. With flexion limited to 30 degrees, or extension limited to 15 degrees, a 20 percent rating is assigned. 38 C.F.R. § 4.71, Diagnostic Codes 5260, 5261 (1994). History Service medical records reveal that the veteran was hospitalized in December 1972 with a 3 month history of pain, swelling and locking of his right knee, with a palpable movable lump appearing intermittently at the right medial knee joint. There was no history of trauma, with the onset apparently following an episode of squatting down at work. The right knee had full range of motion and the ligaments were intact. Arthrotomy of the right knee revealed a cartilaginous loose body , which was from the lateral portion of the medial femoral condyle where there was a chondral defect to well bone. Multiple small holes were drilled into the medial femoral condyle, the edges smoothed, and the loose pieces removed. The discharge diagnosis in January 1973 was osteochondritis dissecans with loose body of the right knee. On separation examination in March 1973, it was noted that knee pain was still prevalent, and the veteran was on physical therapy. When examined by the VA in May 1973, the veteran reported increased pain with prolonged standing and strenuous activities, and difficulty in squatting and kneeling. There was full range of motion of flexion and extension. X-ray studies of the right knee showed no bone, joint or soft tissue abnormality. By rating action in June 1973 service-connection was established for residuals of arthrotomy of the right knee, evaluated at 10 percent. The complaints and findings on VA examination in May 1976 were essentially as in 1973, with slight tenderness over the medial aspect. The veteran was seen as an outpatient by the VA from 1987 to 1990. In April 1990 he was seen for complaints of right knee pain and swelling. X-ray studies of the right knee showed cortical irregularity with well circumscribed sclerotic margins at the articular surface of the medial femoral condyle. An adjacent ossified body was thought to represent an osteochondral fracture remnant. The finding were suggestive of osteochondritis involving the right medial femoral condyle. There was no effusion or other significant bone, joint, or soft tissue abnormality noted. The impression was suspect osteochondritis dissecans medial femoral condyle. Orthopedic evaluation in May 1990 revealed mild medial joint line tenderness. No instability was shown. The assessment was osteochondritis dissecans. The veteran was given the option of an invasive procedure versus observation, and he elected to be followed. X-ray studies of the right knee in September 1991 were interpreted as showing soft tissue swelling or effusion, otherwise normal. In December 1991, the veteran presented testimony at a hearing held at the RO. The veteran reported that walking, standing, carrying, and bending bothered the right knee, and that he was experiencing locking of the right knee. He also indicted that he could hear and feel crackling and grating in the right knee. Transcript, hereinafter Tr., 2 and 3. When examined by the VA in January 1992, the veteran described recurring bouts of swelling of the right knee, with chronic pain. Physical examination showed complaints of knee pain on squatting. There was normal range of motion of the right knee, with crepitus and pain on both flexion and extension. The ligaments were intact and no atrophy was shown. A mild effusion of the right knee was noted. X-ray studies of the right knee were interpreted as showing evidence of minimal degenerative arthrosis changes, with no other localizing signs of bone or soft tissue abnormality noted. The impression was minimal degenerative arthrosis of the right knee joint. Summary During service the veteran was treated for osteochondritis dissecans involving the medial femoral condyle, with removal of a loose body. After the surgery in service he still experienced pain with activity but apparently the swelling and locking had been relieved. Currently the veteran is again experiencing swelling and locking, in addition to the pain in the right knee. The Board notes that the osteochondritis dissecans of the medial femoral condyle were verified by examination and X-ray studies in April and May 1990. In rating the right knee, the original evaluation was by analogy to other impairment of the knee, and a 10 percent rating was assigned under Diagnostic Code 5257. Currently the veteran has full range of motion of the right knee, eliminating the need for consideration of any rating for limitation of motion (Diagnostic Codes 5260 and 5261). The right knee ligaments are stable. While there is pain and occasional swelling of the knee, this is contemplated under the presently assigned 10 percent rating, which compensates for slight impairment. Given the lack of evidence of recurrent subluxation or lateral instability causing moderate impairment, a 20 percent rating cannot be justified. The veteran is appropriately rated. A higher rating is not merited. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.71, Diagnostic Code 5257. Lumbosacral Disc Disability Limitation of motion of the lumbar spine, slight, warrants a 10 percent evaluation. Moderate limitation of motion is assigned a 20 percent rating. 38 C.F.R. 4.71, Diagnostic Code 5292 (1994). Pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief, a 60 percent rating is assigned. Severe intervertebral disc syndrome, with recurring attacks, with intermittent relief, a 40 percent rating is assigned. Moderate syndrome, with recurring attacks, a 20 percent rating is warranted. Mild manifestations warrant a 10 percent rating. 38 C.F.R. § 4.71, Diagnostic Code 5293 (1994). Lumbosacral strain, severe, manifested by listing of the whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, warrants a 40 percent evaluation. With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, a 20 percent rating is assigned. With characteristic pain on motion a 10 percent rating is warranted. 38 C.F.R. § 4.71, Diagnostic Code 5295 (1994). History In April 1972 the veteran was seen for complaints of back pain. He reported falling off an aircraft 6 months earlier, injuring his back. Physical examination revealed no muscle spasm or pain on straight leg raising, and ankle jerks were equal and active. Mild tenderness on the left was noted. X-ray studies of the lumbar spine were normal. The diagnosis was muscle strain. Physical therapy was started in April. Later in April the veteran stated that his back pain had improved to where it was only intermittent and mild. He was put on temporary physical profile in May 1972, limiting his activities. Physical examination for separation in March 1973 did not show any back disability; however, it was noted that back pain from an injury overseas, occasionally recurred, usually on lifting or standing "wrong." When examined by the VA in May 1973, the veteran complained of being unable to do any heavy lifting. He had full rang of motion in all directions. X-ray studies of the lumbar spine were showed minimal narrowing of the lumbosacral joint space, other wise normal. By rating action in June 1973 service-connection was established for lumbosacral disc narrowing and a noncompensable evaluation was assigned under 38 C.F.R. § 4,71a, Diagnostic Code 5003. A May 1991 rating action confirmed and continued a noncompensable evaluation for lumbosacral disc narrowing, the Diagnostic Code assigned was 5293. X-ray studies of the lumbar spine in September 1991 were interpreted as showing degenerated gassy disc with sclerosis, disc space narrowing and osteophyte formation and associated facet disease at L5-S1, with less marked changes at L4-L5. The impression was degenerative disc disease most pronounced at L5-S1. In hearing testimony in December 1991, Tr. 4, 5, and 6, the veteran reported that his back would "pop" out on him from time to time, with aggravating pain in the middle of his back. He indicated that the pain was mostly dull with sharp pain when moved wrong. The pain was said to get unbearable when he stood, and was located around the belt line, radiating into the buttocks and testicles. He reported receiving chiropractic treatment in the past but did not reveal any names, locations or dates of treatment. When examined by the VA in January 1992, the veteran described back pain radiating upward from the lower back into the intrascapular area and down into the hip area. Physical examination showed forward flexion of the lumbar spine to 60 degrees, extension to 10 degrees, lateral motion to 10 degrees bilaterally, and rotation to 50 degrees bilaterally. Discomfort in all ranges of motion were reported. There was no tenderness over the lumbosacral spine and no muscle guarding. Straight leg raising was negative and deep reflexes were symmetrical. No paresthesias, or muscle weakness was found, and he was able to heel and toe walk satisfactorily. Squatting was to 90 degrees, with complaints of knee pain. X-ray studies of the lumbar spine revealed moderate degenerative arthrosis changes involving L4, L5, and S1 vertebrae, with no other localizing signs of bone or soft tissue abnormality observed. The impression was degenerative arthrosis, lumbosacral spine. The hearing officer, in a decision in May 1992, in regard to the lumbar spine, reported that the veteran had some limitation of motion with painful motion secondary to arthritic changes, which met the criteria for a 10 percent rating for the lumbar spine disability. By rating action in February 1993, the RO assigned a 10 percent evaluation for lumbosacral disc narrowing under Diagnostic Code 5293. Summary The evidence has been reviewed and considered. Recent findings with respect to the veteran's service-connected back disorder include loss of motion of the lumbar spine in all planes, degenerative changes at L4, L5, and S1, and no neurological symptoms. As it has been recognized that the arthritic changes with loss of motion are a component of the back disorder, it would not be inappropriate to rate the disability under Diagnostic Codes 5003, and 5292. Currently the veteran has some degenerative disc disease shown by X-ray studies, and subjective complaints of radiating pain; however, on physical examination there are no objectively demonstrated neurological symptoms such as sciatic neuropathy, muscle spasm, absent ankle jerk or other appropriate neurological findings. While the veteran has reported some chiropractic treatment, he has not provided any records thereof, and he has not reported receiving any orthopedic or neurologic treatment for the lumbar spine. With appropriate consideration given to the veteran's subjective complaints, including the variations in the radiation of the pain, in conjunction with the objective findings, the Board does not find more than mild manifestations under Diagnostic Code 5293. In regard to the motion of the lumbar spine under Diagnostic Code 5295, while forward flexion is limited to 60 degrees, this is not indicative of marked impairment. The lateral motion of the lumbar spine is limited to 10 degrees, bilaterally, and there is osteophyte formation involving the lumbar spine. However, the limited lateral motion and arthritis does not, by itself, support an evaluation in excess of 10 percent under Diagnostic Code 5295, as there are no other supporting manifestations. Examination has not shown muscle spasm, listing of the spine, positive Goldthwait's sign or abnormal mobility on forced motion. The Board feels that, based on the evidence of record, the disability of the lumbar spine, at this point in time, is best evaluated on the basis of limitation of motion, under Diagnostic Code 5292. When range of motion was measured in January 1992, rotation was shown to be 50 degrees. There was limitation of flexion, extension and lateral movements, which, collectively, show moderate limitation of motion of overall for the lumbar spine; however, given the range of forward flexion and the lack of limitation of rotation the evidence does not support a finding of severe limitation of motion of the lumbar spine. Based on the entirety of the evidence, the Board finds that a 20 percent evaluation is in order for the service-connected disability of the lumbar spine. 38 U.S.C.A. §§ 1155, 5107(b0; 38 C.F.R. § 4.71, Diagnostic Codes 5293, 5292. Extra Schedular Evaluations In exceptional cases where the schedular standards are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability may be approved provided the case presents such an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The veteran has not submitted evidence tending to show that either the disability caused by his right knee and lumbar spine disabilities are unusual, or that they cause marked interference with work other than as contemplated within the schedular provisions discussed herein, or they require frequent periods of hospitalization as to warrant an extraschedular increased evaluation. Id. ORDER A rating in excess of 10 percent for post-operative residuals of right knee disability is denied. A 20 percent evaluation for lumbosacral disc narrowing is granted, subject to the law and regulations governing the criteria for award of monetary benefits.. RENÉE M. PELLETIER Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.