Citation Nr: 0004914 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 95-16 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for postoperative residuals of a right knee injury prior to August 16, 1993. 2. Entitlement to a rating in excess of 20 percent for postoperative residuals of a right knee injury on and after October 1, 1993. 3. Entitlement to a rating in excess of 10 percent for femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee prior to February 14, 1997. 4. Entitlement to a rating in excess of 20 percent for femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee on and after February 14, 1997. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The veteran served on active duty from November 1975 to November 1979. The instant appeal arose from a November 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a claim for an increased rating for postoperative residuals of a right knee injury. A hearing officer decision and a subsequent rating decision dated in October 1992 granted an increased rating, to 20 percent, effective April 1, 1991. By rating decision dated in November 1993, a temporary disability evaluation was assigned from August 16, 1993, to September 30, 1993. Thereafter, a 20 percent disability evaluation was assigned from October 1, 1993. By rating decision dated in September 1999, service connection was separately granted for femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee. A 10 percent evaluation was assigned, effective August 19, 1993, and a 20 percent was assigned, effective February 14, 1997. Since the claim for an increased rating for the right knee has not been withdrawn, an increased rating above 20 percent for postoperative residuals of a right knee injury and above 20 percent for femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee remains at issue on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim remains in controversy where less than the maximum available benefits are awarded). The veteran had a hearing before the undersigned member of the Board of Veterans' Appeals (Board) in August 1996. This case was remanded for further development in December 1996. FINDINGS OF FACT 1. Postoperative residuals of a right knee injury prior to August 16, 1993, were manifested by complaints of pain, swelling, locking, instability, grinding and popping. Objective medical evidence showed pain, crepitus, quadriceps atrophy, no discernable instability, degenerative joint disease, and range of motion of at least 0 to 110 degrees. 2. Postoperative residuals of a right knee injury on and after October 1, 1993, were manifested by complaints of pain, swelling, locking, instability, grinding and popping. Objective medical evidence showed pain, crepitus, quadriceps atrophy, and no discernable instability. 3. Prior to February 14, 1997, femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee were manifested by range of motion of at least 0 to 100 degrees with degenerative joint disease, chondromalacia patella, and popliteal cyst on magnetic resonance imaging (MRI). 4. On and after February 14, 1997, femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee were manifested by range of motion of at least 0 to 135 degrees with degenerative joint disease, chondromalacia patella, and popliteal cyst on MRI. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for postoperative residuals of a right knee injury prior to August 16, 1993, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5299-5258 (1999). 2. The criteria for a rating in excess of 20 percent for postoperative residuals of a right knee injury on and after October 1, 1993, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.40, 4,45, 4.71a, Diagnostic Code 5299-5258 (1999). 3. The criteria for a rating in excess of 10 percent for femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee prior to February 14, 1997, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5010, 5260, 5261 (1999). 4. The criteria for a rating in excess of 20 percent for femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee on and after February 14, 1997, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5010, 5260, 5261 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims for increased ratings are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). 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") has held that a mere allegation that a service-connected disability has increased in severity is sufficient to render the claim well grounded. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board is also satisfied that all relevant facts needed to adjudicate these claims have been properly developed. This case has been remanded by the Board for further development, and the veteran has undergone several VA examinations in connection with his claim for benefits. No further assistance to the veteran is required on that issue to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). 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 that is of primary concern. See 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). Service medical records show that the veteran injured his knee playing basketball in January 1979 and that he was assessed with a ligament tear. These records also show findings of tenderness, limited range of motion, and fluid in the knee. The veteran also reported that his knee gave out. A review of the record shows that the RO in February 1980 granted service connection for residuals of a right knee injury and assigned a 10 percent disability rating. In April 1986 the veteran underwent arthroscopy and chondral shaving. An October 1989 rating decision denied an increased rating, and the veteran initiated an appeal. A June 1990 hearing officer's decision also denied an increased rating. The veteran did not perfect the appeal. On January 28, 1991, the RO received a request for an increased rating for the right knee disorder. He had undergone arthroscopy with chondroplasty and debridement of the synovium that month. By rating decision dated in April 1991, a temporary total rating was granted from January 21, 1991, to March 31, 1991, under the provisions of 38 C.F.R. § 4.30 (1999). A hearing officer decision and subsequent rating decision dated in October 1992 granted an increased rating, to 20 percent, effective April 1, 1991. Rating in excess of 20 percent for postoperative residuals of a right knee injury prior to August 16, 1993 The Board has reviewed all the evidence of record concerning this time period. The evidence includes a July 1991 VA examination. The veteran reported that the knee was "sore, and it stays in pain." He noted some swelling and locking, some instability, and grinding and popping on motion. Physical examination revealed that the veteran slightly favored the right knee while walking, and there was slight increased heat with soft tissue swelling. Testing revealed some underlying chondromalacia patella. There was no discernable ligament laxity. Range of motion was 110 degrees flexion and 0 degrees extension. X-rays showed osteoarthritic changes. The diagnosis was post-traumatic chondromalacia patella and early osteoarthritis. During a March 1992 hearing before RO personnel, the veteran testified that he was doing physical therapy at home. He also stated that he took Motrin three times daily and that he experienced constant pain. He also reported occasional locking, occasional instability, limping, and swelling with prolonged standing. He was employed as a janitor, and he used a knee brace at work. VA treatment records over this period show complaints of right knee pain. A January 1992 X-ray showed arthritis but no effusion. A February 1992 physical therapy record noted full range of motion with crepitus. The assessment was right quadriceps atrophy with right knee pain. An April 1992 treatment record revealed 0 to 120 degrees range of motion and patellar grind. The assessment was chondromalacia patella. A March 1993 record showed instability testing was negative, but there was pain. An April 1993 arthrogram revealed a suspected horizontal tear in the medial meniscus, a medium-sized Baker's cyst, and degenerative changes. July and August 1993 records note complaints of giving way and locking. The veteran's postoperative residuals of a right knee injury have been evaluated, in part, under the provisions of Diagnostic Code 5299-5258 as analogous to dislocated semilunar cartilage with locking, pain, and effusion into the joint. 38 C.F.R. §§ 4.20, 4.71a, Diagnostic Code 5258 (1999). Twenty percent is the maximum schedular evaluation under this Diagnostic Code. The appellant must be compensated for all manifestations of a disability to the extent authorized under the regulations, subject to 38 C.F.R. § 4.14 which precludes pyramiding, or the evaluation of the same manifestation of a disability under several Diagnostic Codes. VAOPGCPREC. 9-98. As there is no medical evidence of recurrent subluxation or lateral instability, Diagnostic Code 5257 is not applicable. As Diagnostic Code 5258 does not involve limitation of motion, entitlement to an evaluation under another Diagnostic Code which does involve limitation of motion must be considered. A veteran who has degenerative arthritis and limitation of motion of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC. 23-97. The Board deems that the situation in this case is analogous to that described in VAOPGCPREC. 23-97; thus, it appears that the veteran could be rated separately under Diagnostic Codes 5010, for traumatic arthritis, and 5258. Traumatic arthritis is rated as degenerative arthritis. Id. Degenerative arthritis is rated on the basis of limitation of motion for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999). Additional disability is warranted where there is limitation of flexion (Diagnostic Code 5260) or limitation of extension (Diagnostic Code 5261); however, the veteran must at least meet the criteria for a 0 percent rating under one of these Diagnostic Codes. VAOPGCPREC. 23-97; Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Standard flexion and extension of the knee is 0-140 degrees. 38 C.F.R. § 4.71, Plate II (1999). The medical evidence of record in this case does not show a limitation of flexion of the knee which would warrant a 0 percent evaluation under Diagnostic Code 5260. Flexion must be limited to 60 degrees for a 0 percent rating. The evidence, noted above, shows that the veteran has at least 110 degrees of flexion. The medical evidence also does not show a limitation of extension of the knee which would warrant a 0 percent evaluation under Diagnostic Code 5261. The veteran has full extension. Although there is X-ray evidence of arthritis of the right knee, there is no evidence of limitation of motion severe enough to warrant a 0 percent rating under Diagnostic Code 5260 or 5261. Therefore, a separate 10 percent rating under Diagnostic Code 5010-5260 or 5010-5261 is not warranted. The Board also notes that the required manifestations for evaluation under Diagnostic Codes 5256 (knee, ankylosis), 5259 (symptomatic removal of semilunar cartilage), 5262 (tibia and fibula, impairment of), and 5263 (genu recurvatum) are not applicable, as the presence of ankylosis of the left knee, removal of the semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum have not been demonstrated. The Board has considered the application of 38 C.F.R. § 4.40 (consider "functional loss" "due to pain"), and 38 C.F.R. § 4.45 (consider "[p]ain on movement, swelling, deformity, or atrophy on disuse" in addition to "[i]nstability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing", incoordination, and excess fatigability), and 38 C.F.R. § 4.59 (minimum compensable evaluation warranted for painful motion with joint pathology) in this case. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, additional evaluation is not warranted under these regulations as pain is considered in the 20 percent evaluation under Diagnostic Code 5258. Further, there is no indication that there is additional loss of motion due to pain or swelling. Review of the record reveals that the RO did not expressly consider referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked inference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the RO did not expressly consider 38 C.F.R. § 3.321(b)(1), the Board has reviewed the record with these mandates in mind and finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). Accordingly, a rating in excess of 20 percent for postoperative residuals of a right knee injury prior to August 16, 1993, is not warranted. Rating in excess of 20 percent for postoperative residuals of a right knee injury on and after October 1, 1993 The veteran underwent arthroscopy and debridement of the knee in August 1993. By rating decision dated in November 1993, a temporary disability evaluation was assigned from August 16, 1993, to September 30, 1993. Thereafter, a 20 percent disability evaluation was assigned from October 1, 1993, for postoperative residuals of a right knee injury. A February 1994 VA treatment record noted complaints of pain with tenderness on examination. However, there was no effusion, crepitus, or instability. An August 1994 record noted mild effusion, range of motion of 0 to 100 degrees with crepitus, and no instability. During an August 1994 hearing before RO personnel, the veteran testified that he had lost his job as a janitor. The veteran again complained of pain, swelling, locking, and giving way. He stated that he wore a brace about three weeks out of the month. He had resumed the same level of medication that he was taking prior to the August 1993 surgery. During his August 1996 hearing before the undersigned member of the Board, the veteran testified that his pain level was about a seven on a scale of ten. The veteran reported that he had resigned from a job with the U. S. Post Office due to his knee problems; however, he also indicated that he had an attendance problem. A February 1997 VA examination report noted that the veteran was self-employed and sold clothing. The veteran reported clicking, popping, swelling, giving way, and a tight sensation in the back of the knee. He stated he could not run, squat or stand for prolonged periods because such activity causes his knee to swell. Physical examination revealed a relatively normal gait. A knee brace was removed for examination purposes. It was noted that the veteran was unwilling or unable to squat. There was no soft tissue swelling, no increased heat, and no deformity of the knee. There was tenderness on pressure to the medial aspect of the knee, and there was slight disuse atrophy with associated weakness in the thigh musculature. Mild crepitus was audible. Knee extension was 0 degrees, and knee flexion was 135 degrees. There was no evidence of laxity of ligaments or instability on testing. It was noted that he made facial expressions of pain during the positive patellar grinding test. Chondromalacia patella was noted with no other discernable abnormalities. Small, well-healed scars from previous arthroscopic surgeries were also noted. X-rays showed degenerative changes with no evidence of effusion. A March 1997 MRI of the knee showed evidence of a chronic anterior cruciate ligament tear. Other ligaments were normal. Degenerative joint disease was present as was chondromalacia patella. Minimal joint fluid was noted as was a small popliteal cyst. There was no evidence of a definite tear of the medial meniscus. As noted above, twenty percent is the maximum schedular evaluation under Diagnostic Code 5258. As there is no medical evidence of instability, Diagnostic Code 5257 is not applicable. VA treatment records and the most recent VA examination report found no evidence of laxity or instability. The Board also notes that the required manifestations for evaluation under Diagnostic Codes 5256 (knee, ankylosis), 5259 (symptomatic removal of semilunar cartilage), 5262 (tibia and fibula, impairment of), and 5263 (genu recurvatum) are not applicable, as the presence of ankylosis of the left knee, removal of the semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum have not been demonstrated. The Board has considered the application of 38 C.F.R. § 4.40 (consider "functional loss" "due to pain"), and 38 C.F.R. § 4.45 (consider "[p]ain on movement, swelling, deformity, or atrophy on disuse" in addition to "[i]nstability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing", incoordination, and excess fatigability), and 38 C.F.R. § 4.59 (minimum compensable evaluation warranted for painful motion with joint pathology) in this case. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, additional evaluation is not warranted under these regulations as pain is considered in the 20 percent evaluation under Diagnostic Code 5258. Further, there is no indication that there is additional loss of motion due to pain or swelling. Review of the record reveals that the RO did not expressly consider referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked inference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the RO did not expressly consider 38 C.F.R. § 3.321(b)(1), the Board has reviewed the record with these mandates in mind and finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). Accordingly, a rating in excess of 20 percent for postoperative residuals of a right knee injury on and after October 1, 1993, is not warranted. Rating in excess of 10 percent for femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee prior to February 14, 1997 By rating decision dated in September 1999, service connection was separately granted for femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee. A 10 percent evaluation was assigned, effective August 19, 1993. As noted above, a temporary disability evaluation was assigned from August 16, 1993, to September 30, 1993. The veteran's femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee is evaluated under the provisions of Diagnostic Code 5010 as traumatic arthritis substantiated by X-ray findings. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (1999). The medical evidence of record in this case does not show a limitation of motion of the knee which would warrant a rating in excess of 10 percent under Diagnostic Code 5010 prior to February 14, 1997. The medical evidence of record over that period does not show a limitation of flexion of the knee which would warrant a rating in excess of 10 percent under Diagnostic Code 5260. Flexion must be limited to 30 degrees for a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (1999). The evidence, noted above, shows that the veteran had at least 100 degrees of flexion. The medical evidence also does not show a limitation of extension of the knee which would warrant a rating in excess of 10 percent under Diagnostic Code 5261. Extension must be limited to 15 degrees for a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (1999). The veteran has full extension. Although there is X-ray evidence of arthritis of the right knee, there is no evidence of limitation of motion severe enough to warrant a 20 percent rating under Diagnostic Code 5260 or 5261. Therefore, an increased rating under Diagnostic Code 5010 is not warranted prior to February 14, 1997. Rating in excess of 20 percent for femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee on and after February 14, 1997 By rating decision dated in September 1999, a 20 percent evaluation was assigned for femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee, effective February 14, 1997. The medical evidence of record, noted above, does not show a limitation of motion of the knee which would warrant a rating in excess of 20 percent under Diagnostic Code 5010 on and after February 14, 1997. The medical evidence of record over this period does not show a limitation of flexion of the knee which would warrant a rating in excess of 20 percent under Diagnostic Code 5260. Flexion must be limited to 15 degrees for a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (1999). The evidence, noted above, shows that the veteran had 135 degrees of flexion during the February 1997 VA examination. The medical evidence also does not show a limitation of extension of the knee which would warrant a rating in excess of 20 percent under Diagnostic Code 5261. Extension must be limited to 20 degrees for a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (1999). The veteran has full extension. Although there is X-ray evidence of arthritis of the right knee, there is no evidence of limitation of motion severe enough to warrant a 30 percent rating under Diagnostic Code 5260 or 5261. Therefore, an increased rating under Diagnostic Code 5010 is not warranted on and after February 14, 1997. ORDER A claim for entitlement to a rating in excess of 20 percent for postoperative residuals of a right knee injury prior to August 16, 1993, is denied. A claim for entitlement to a rating in excess of 20 percent for postoperative residuals of a right knee injury on and after October 1, 1993, is denied. A claim for entitlement to a rating in excess of 10 percent for femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee prior to February 14, 1997, is denied. A claim for entitlement to a rating in excess of 20 percent for femorotibial degenerative joint disease, chondromalacia patella, and popliteal cyst of the right knee on and after February 14, 1997, is denied. C. P. RUSSELL Member, Board of Veterans' Appeals