Citation Nr: 0001325 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 98-15 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased evaluation for internal derangement of the right knee, with degenerative joint disease, status post meniscectomy, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from June 1951 to June 1953. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). FINDING OF FACT The appellant's internal derangement of the right knee, with degenerative joint disease, status post meniscectomy, is manifested by not more than moderate instability, degenerative joint disease, and slight, painful limitation of motion. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 20 percent for internal derangement of the right knee, with degenerative joint disease, status post meniscectomy, based on instability or limitation of motion, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 5257, 5260, 5261, (1999). 2. The criteria for a 10 percent evaluation for right knee disability due to arthritis and painful motion are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 5003, 5010 (1999); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991), Hicks v. Brown, 8 Vet. App. 417 (1995); VA O.G.C. Prec. Op. No. 23-97 (July 1, 1997), VA O.G.C. Prec. Op. No. 9-98 (August 14, 1998). REASONS AND BASES FOR FINDING AND CONCLUSIONS The appellant claims that his service-connected right knee disability has worsened, thereby entitling him to a higher evaluation for the disorder. Generally, claims for increased evaluations are considered to be well grounded. A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board is satisfied that all relevant facts pertaining to the appellant's claim have been properly developed. There is no indication of any additional pertinent records which have not been obtained. No further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in the SCHEDULE FOR RATING DISABILITIES represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Moreover, each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. 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. Service medical records show that the appellant was treated for a sprained right knee in September 1951 following a fall from an airplane wing. He was again treated for right knee problems in October 1951 after re-injuring the knee in a fall in the barracks. Medical records dated since service show that the appellant underwent arthroscopic partial medial and lateral meniscectomies and shaving of chondromalacia patella and the femoral trochlea groove of the right knee in August 1987. At a VA orthopedic examination in July 1994, the appellant walked with an unremarkable gait and had well-healed arthroscopic portals on the right knee. Flexion of the right knee was to 125 degrees, while extension of the knee was to within 5 degrees of full extension. Increased pain was noted on full flexion, and there was some mild patellofemoral crepitus on range of motion, without significant tenderness to palpation or definite redness, heat, or swelling. There was no evidence of instability. X-rays of the right knee at the examination revealed mild degenerative joint disease involving both compartments. A December 1997 VA orthopedic examination revealed that the appellant had a careful gait without a limp. Flexion and extension in the right knee were to 119 and 0 degrees, respectively. The diagnosis was degenerative joint disease in both knees with slight limitation of motion and slight loss of motion due to pain. At a November 1998 VA orthopedic examination, the appellant complained of pain, weakness, and stiffness in his knees, for which he took Naprosyn. He indicated that he used a cane when walking. Slight evidence of painful motion was noted, with motion stopping at the point where pain would begin. There was weakness and guarding of movement, without edema, effusion, redness, heat, or abnormal movement. Gait was fair, with use of a cane. Flexion and extension were to 104 and 0 degrees, respectively, in the right knee. Stability was described as fair, with slight anterior and posterior instability noted in both knees. X-rays of the knees showed tricompartmental degenerative arthritis in each knee. The diagnosis was degenerative joint disease of both knees with loss of function due to pain. Service connection was granted for internal derangement of the right knee by a February 1971 rating decision, and a 10 percent evaluation was assigned under Diagnostic Code 5257, from November 10, 1971. An August 1994 rating decision granted a 20 percent evaluation under Diagnostic Codes 5010- 5257 for internal derangement of the right knee, with degenerative joint disease, status post meniscectomy, effective November 16, 1993. For knee impairment involving recurrent subluxation or lateral instability, a 30 percent evaluation is assigned when the condition is severe, a 20 percent evaluation is assigned if the condition is moderate, and a 10 percent evaluation is assigned when the condition is slight. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As the evidence fails to demonstrate that the appellant has severe instability associated with his right knee, the Board is unable to identify a basis to grant an evaluation greater than 20 percent for his right knee disability based on instability. The Board has considered whether the appellant's right knee disability can be assigned an evaluation greater than 20 percent based on limitation of motion. Under Diagnostic Code 5260, limitation of knee flexion is assigned a 30 percent evaluation when the limitation is to 15 degrees, a 20 percent evaluation when the limitation is to 30 degrees, and a 10 percent evaluation when the limitation is to 45 degrees. Under Diagnostic Code 5261, limitation of knee extension is assigned a 50 percent evaluation when the limitation is to 45 degrees, a 40 percent evaluation when the limitation is to 30 degrees, a 30 percent evaluation when the limitation is to 20 degrees, a 20 percent evaluation when the limitation is to 15 degrees, and a 10 percent when the limitation is to 10 degrees. 38 C.F.R. § 4.71a. Normal extension and flexion of a knee are to 0 and 140 degrees, respectively. 38 C.F.R. § 4.71a, Plate II. Because the most recent range of motion testing for extension and flexion in the appellant's right knee, at the December 1995 VA examination, revealed that extension was full and that flexion was to 104 degrees, the Board finds that an evaluation greater than 20 percent is not warranted for his right knee disability based on limitation of motion. Consideration has also been given to the provisions of 38 C.F.R. §§ 4.40 and 4.45, See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), as well as to 38 C.F.R. § 4.59. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) Excess fatigability; (e) Incoordination, impaired ability to execute skilled movements smoothly; (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are related considerations. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. While the appellant complains of pain in his right knee, the Board does not find that such pain has resulted in functional disability in excess of that contemplated in the 20 percent evaluation already assigned. He walks without an abnormal gait, albeit with a cane, and has fair stability and range of motion in the knee. Because the currently assigned 20 percent evaluation is based on moderate instability that involves functional impairment, a higher disability evaluation is not warranted for the right knee disability on the basis of functional disability. The Board must consider whether a separate evaluation may be assigned for disability in the appellant's right knee under VA O.G.C. Prec. Op. No. 23-97 or VA O.G.C. Prec. Op. No. 9-98 and the Court's decisions in Lichtenfels and Hicks. Under the provision of VA O.G.C. Prec. Op. No. 23-97 (July 1, 1997), when a veteran with knee disability rated for instability also has arthritis and limitation of motion in the knee to at least the noncompensable degree, then a separate rating could be assigned for the arthritis and limitation of motion under Diagnostic Codes 5003, 5260, and 5261. A subsequent GC opinion, VA O.G.C. Prec. Op. No. 9-98 (August 14, 1998), indicated in a footnote that "[a] separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59..." under the holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). In Lichtenfels, the Court held that "[r]ead together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 thus state that painful motion of a major joint or groups of joints caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion. Id. at 488; see also Hicks v. Brown, 8 Vet. App. 417, 420-21 (1995). In this instance, flexion in the appellant's right knee does not meet the noncompensable level of flexion limitation (60 degrees) under Diagnostic Code 5260, nor is the noncompensable level of extension limitation (5 degrees) shown in the right knee, because extension is shown to be full. Under VA O.G.C. Prec. Op. No. 23-97, if the veteran does not at least meet the criteria for a zero percent rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a rating may be assigned. Cf. Degmetich v. Brown, 104 F. 3d 1328, 1331 (Fed. Cir. 1997). Because the appellant does not have limitation of motion in the right knee that meets the noncompensable level under Diagnostic Code 5260 or Diagnostic Code 5261, a separate disability evaluation is not warranted for the arthritis and limitation of motion in the appellant's right knee under VA O.G.C. Prec. Op. No. 23-97. However, as there is X-ray evidence of arthritis in the appellant's right knee, and he experiences painful motion, the Board finds that he is entitled to a separate evaluation based on arthritis and limitation of motion in the right knee under VA O.G.C. Prec. Op. No. 9-98 and Lichtenfels and Hicks. Because the arthritis in the right knee is described as moderate, and the pain is elicited when flexion reaches 104 degrees, the Board finds that the evidence demonstrates that the highest rating warranted for the arthritis and painful motion in the appellant's right knee is 10 percent. ORDER An increased evaluation is denied for internal derangement of the right knee, with degenerative joint disease, status post meniscectomy, based on instability or limitation of motion. A separate 10 percent evaluation is granted for arthritis and painful motion in the right knee, subject to the laws and regulations governing the award of monetary benefits. JEFF MARTIN Member, Board of Veterans' Appeals