Citation Nr: 0004381 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 96-37 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an evaluation in excess of 10 percent for service-connected degenerative joint disease of the right knee, status post meniscectomy. REPRESENTATION Appellant represented by: Washington Department of Veterans Affairs ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from March 1973 to November 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 1995 rating decision from the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO), which continued a 10 percent evaluation for service-connected degenerative joint disease of the right knee, status post meniscectomy. FINDING OF FACT The veteran's service-connected right knee disability is manifested by full range of motion, no instability, and minimal functional loss. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for service-connected degenerative joint disease of the right knee, status post meniscectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran's service medical records note hospitalization in November 1976 with complaints of right knee pain and swelling. A diagnosis of torn medial meniscus of the right knee was provided. The records show surgery on the right knee for removal of a foreign body was performed in January 1977. The veteran filed an initial claim for VA benefits for a right knee disorder in November 1984. By rating decision in August 1985, the RO granted service connection for residuals of meniscectomy of the right knee with a 10 percent evaluation, effective from November 14, 1984. By rating decision in January 1992, the RO granted service connection for degenerative joint disease of the right knee and included evaluation of this disability with evaluation of the veteran's previously service-connected residuals of meniscectomy of the right knee. In June 1995, the veteran requested that his service- connected knee condition be reevaluated for a possible increase. He noted that he had been diagnosed with right knee arthritis and provided a copy of his physical profile for Reserve service, dated in January 1995. A VA general medical examination was conducted in June 1995. The examiner noted normal gait, normal carriage and erect posture. Range of motion of the knees was 0 to 140 degrees with no instability, but with crepitus bilaterally - worse on the right. The examiner provided a diagnosis of probable bilateral retro-patellar femoral syndrome or probable rather remarkable degenerative changes of the right knee and, to a lesser degree, the left knee. In his notice of disagreement, received in January 1996, the veteran stated that he had severe pain in his right knee, which limited his range of motion. A VA examination was conducted in February 1997, and the examiner noted review of the veteran's medical records. The veteran reported increasing pain in his right knee over the years, particularly with driving or sitting for more than two hours, lifting, or playing sports. He noted that these activities caused pain, weakness, fatigability, and flare- ups. He stated that walking up or down hills caused difficulty. Physical examination revealed significant crepitus with movement. Range of motion was normal with extension to 0 degrees and flexion to 140 degrees. No significant discomfort was noted with range of motion testing. The examiner reported no tenderness to palpation, subluxation, or lateral instability. The examiner provided a diagnosis of right knee pain secondary to osteochondritis noted on X-ray examination. In a statement, received in July 1998, the veteran reported that he had to pay a premium price for a single story house on a level lot, as he was unable to negotiate stairs comfortably due to the pain and discomfort associated with his service-connected knee injury. A VA examination was conducted in March 1999, and the examiner noted review of the veteran's claims file. The veteran reported episodic right knee pain, which had progressed to nearly constant discomfort, worse with increased use. The examiner reported that the veteran had normal station and gait. A well-healed and nontender scar was shown over the medial joint of the right knee. Range of motion testing revealed flexion to 145 degrees and extension to 0 degrees. The examiner reported that discomfort was experienced from 142-145 degrees. No point tenderness, soft tissue swelling, or joint effusion was shown on physical examination. The examiner provided an impression of right knee pain secondary to osteochondritis with no evidence of any instability and minimal, if any, functional loss. II. Analysis In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In the instant case, there is no indication that there are additional records, which have not been obtained and which would be pertinent to the present claims. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1998). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1998). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon 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, 595 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2, which require the evaluation of the complete medical history of the veteran's condition. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1998). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1998). In VAOPGCPREC 23-97, the General Counsel stated that when a knee disorder is rated under Diagnostic Code 5257 and a veteran also has limitation of knee motion which at least meets the criteria for a zero percent evaluation under Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, the General Counsel stated that if a veteran does not meet the criteria for a zero percent rating under either Diagnostic Code 5260 or 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997). The Board recognizes that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"), in DeLuca v. Brown, 8 Vet. App. 202 (1995), held that where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. 38 C.F.R. §§ 4.40, 4.45 (1998). The provisions contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination and impaired ability to execute skilled movement smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. Id. Degenerative arthritis is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic code, a rating of 10 percent is warranted for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. An evaluation in excess of 10 percent for limitation of leg flexion requires limitation to less than 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. An evaluation in excess of 10 percent for limitation of leg extension requires limitation to more than 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Recurrent subluxation or lateral instability of the knee is entitled to a rating of 10 percent for slight impairment, 20 percent for moderate impairment, and 30 percent for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The range of motion testing results, reported in the VA examinations in June 1995, February 1997, and March 1999 do not meet the Schedular criteria for an evaluation in excess of the 10 percent for limitation of motion. The veteran has not alleged, and the VA examinations did not find any evidence of, instability or subluxation. Although the veteran reported pain, weakness, and fatigability of the right knee, and crepitus was noted in the right knee, the VA examiner in March 1999, after review of the veteran's claims file, noted minimal, if any, functional loss. The veteran's report, in his notice of disagreement, of severe pain causing limitation of motion, was not confirmed by any of the VA examinations of record. The veteran's complaints of pain, weakness and fatigability do not create a disability picture analogous to the limitation of motion required for an evaluation in excess of 10 percent. ORDER Entitlement to an evaluation in excess of 10 percent for service-connected degenerative joint disease of the right knee, status post meniscectomy, is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals