Citation Nr: 0005748 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 97-15 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for right hip disability on a secondary basis. 2. Entitlement to an increased rating for right knee disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B.E. Jordan, Counsel INTRODUCTION The veteran had active military service from November 1955 to August 1957. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision of the Department of Veterans Affairs (VA) Medical and Regional Office (M&ROC) in Wichita, Kansas. In March 1998, the Board remanded this matter to the RO for further development. The Board is satisfied that the RO has complied with the Remand directives. In his January 2000, written presentation, the veteran's representative discussed the issue of secondary service connection for a low back disability and aggravation of a low back condition by a service-connected disability. The Board construes this as an informal claim for secondary service connection for a low back disability and the matter is referred to the RO for consideration. FINDINGS OF FACT 1. All of the evidence necessary for an equitable disposition of the appeal has been obtained. 2. The claim for service connection for right hip disability on a secondary basis is not plausible. 3. The service-connected right knee disability is manifested by limitation of motion on forward flexion and back extension and functional loss due to pain, but is no more than moderately disabling. 4. No unusual or exceptional disability factors have been presented with respect to the veteran's service-connected right knee disability. CONCLUSIONS OF LAW 1. The claim for service connection for right hip disability on a secondary basis is not well grounded. 38 U.S.C.A § 5107(a) (West 1991). 2. The criteria for a disability evaluation of 20 percent for right knee disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.40, 4.45 (1999); see DeLuca v. Brown, 8 Vet. App. 202 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the claim for service connection for right hip disability, the threshold question to be answered is whether the appellant has presented evidence of a well- grounded claim. 38 U.S.C.A. § 5107(a). A well-grounded claim is a claim that is plausible, that is, one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a claim is not well grounded, the appeal must fail with respect to it, and there is no duty to assist the appellant further in the development of facts pertinent to the claim. Id., 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The initial burden is on the claimant to produce evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a); see Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit at 92; Tirpak at 610-11. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Grottveit at 92-93. Further, in order for a claim to be considered plausible, and therefore well grounded, there must be evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or an injury in service (lay or medical evidence), and medical evidence of a nexus between the inservice injury or disease and a current disability. Epps. v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3rd 604 (Fed. Cir. 1996) (per curiam), Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). To establish a well-grounded claim for entitlement to service connection on a secondary basis, the veteran must provide medical evidence that attributes a non service-connected disability to a service-connected disability. Jones v. Brown, 7 Vet. App. 134, 137 (1994). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (1997). In Allen v. Brown, the Court held that "when aggravation of a veteran's non- service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to aggravation." Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc), As indicated below, service connection is in effect for a right knee disability. The veteran contends, in essence, that he developed a right hip disability as result of his service-connected right knee disability. When examined by VA in April 1996, the veteran complained of tenderness on movement of the hip. The Board notes that there were no clinical findings with respect to the right hip. Although the examiner did not enter a diagnosis for a hip disability, he suggested that the veteran's hip complaints were probably secondary to the right knee condition. Similarly, an examiner who conducted a neurological examination in July 1998 noted the veteran's complaints of right hip pain. While the examiner did not identify a disease entity with respect to the right knee, he noted that the pain reported in the right hip may be referred to pain from the right knee. However the report of a VA orthopedic examination dated in July 1998 provides that the veteran pointed to the right low lumbar area of the spine when referring to right hip discomforts. The veteran did not provide any specific history of an injury to the hip. The examiner opined that he could not find any primary problem with respect to the right hip that could be considered secondary to the service connected right knee disability. Based on the foregoing, it is reasonable to conclude that the evidence does not establish that the veteran has a right hip disability in that pain is not considered a disease entity for VA purposes. See 38 C.F.R. § 3.303(b). In the absence of such, the Board must conclude that the veteran's claim is not well grounded. Brammer v. Derwinski at 225. The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete his application for the claim of service connection as noted above. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). Increased Rating As a preliminary matter, the Board finds that the veteran's claim is plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well-grounded claim). The Board is satisfied that all relevant evidence has been obtained with respect to this claim and that no further assistance to the veteran is required in order to comply with the duty to assist mandated by statute. In accordance with 38 C.F.R. §§ 4.1, 4.2 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of the veteran's service- connected right knee disability and has found nothing in the historical record that would lead to a conclusion 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 that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. See Francisco v. Brown, 7 Vet. App. 55 (1994) (where an increase in a disability rating is at issue, the current level of disability is of primary concern). The record shows that the veteran incurred a right knee injury during service that resulted in a diagnosis of chondromalacia of the right patella. VA medical records dated in the 1980s reflect that the veteran continued to be seen and treated for right knee problems. These documents show a diagnosis of Grade III-IV condyle lesions, and medial femoral condyle with degenerative tear of the posterior horn of the medial meniscus. In September 1986, an arthroscopic medial meniscectomy and debridement of the condyle lesions of the right knee was performed. The veteran experienced an additional injury to the right knee in 1986. At that time, the veteran noted persistent acute right knee pain. The report of a VA examination dated in November 1987 revealed, in pertinent part, loss of 3 degrees of extension, flexion to 120 degrees, mild patellofemoral crepitance with more significant femorotibial crepitance, pivot shift, and mediolateral laxity. Lachman's examination and McMurray's tests were all negative. An X-ray of the right knee showed degenerative changes and chondrocalcinosis. The diagnostic impression was degenerative joint disease with chondrocalcinosis. In a December 1987 rating decision, the RO granted service connection for chondromalacia of the right knee and assigned a noncompensable evaluation. In February 1996, the veteran filed an informal claim for an increased rating for the service-connected right knee disability. VA medical records dated from 1995 to 1996 provides that the veteran was seen for right knee discomforts. A February 1996 X-ray of the right knee revealed degenerative changes. At a VA examination dated in April 1996, the veteran complained of right knee pain and swelling after standing, grinding, and reduced range of motion. On physical examination, there was a 13 centimeter (cm) surgical scar on the anterior knee and a 6 cm scar on the medial-posterior side of the knee. The examiner observed grinding crepitus. Drawer's and McMurray's signs were negative. Ligaments and tendons were tight. Range of motion of the right knee was from 0 to 95. The examiner noted that it was difficult for the veteran to extend the knee straight for the last 5 degrees. The diagnoses were postoperative cartilage removal of the right knee and degenerative joint disease of the right knee. In May 1996, the RO increased the disability evaluation for the service-connected right knee disability to 10 percent under 38 C.F.R. § 4.71a, Diagnostic Codes 5020 and 5257. That evaluation became effective in February 1996. The RO recharacterized the right knee disability as chondromalacia of the right knee with traumatic arthritis. A VA outpatient treatment record dated in May 1997 revealed subjective complaints including right knee pain and swelling. An X-ray of the right knee dated in May 1997 showed slight narrowing of medial joint space, lateral meniscal calcifications, small joint effusion, and patellar osteophytes. In June 1997, the veteran provided testimony at personal hearing before a hearing officer regarding the right knee disability. Essentially, the veteran testified that his right knee disability was more disabling than currently evaluated. That hearing transcript is of record. The record includes VA outpatient treatment records dated in 1998 that show continued complaints regarding the right knee. In February 1998, the veteran was having difficulty walking; he did not require walking aids. In June and September 1998, it was noted that the veteran had been fitted for a right knee brace. In September 1998, there was swelling in the right knee. In July 1998, the veteran underwent a VA orthopedic and neurological examination. The veteran related that he always limped, that he could not fully straighten out the right knee, that the right knee gave way causing the veteran to fall. It was noted that the veteran wore a knee brace on the right knee to the examination and that he wore the brace 12 hours a day. The orthopedic examination of right knee revealed a palpable deformity of the joint where arthritic ridges were felt medially. There was no increased heat. There were two well- healed surgical scars. Back extension of knee lacked 15 degrees of full extension. Forward flexion was to 105 degrees. The veteran complained of pain on extreme motion. There was no instability of collateral or cruciate ligaments. There was moderate crepitation during active knee motion. The veteran could not fully accomplish walking on the heels and toes because of knee pain. He complained of right knee pain when attempting to perform straight leg raises on the right side. X-rays of the knees associated with the examination revealed degenerative changes bilaterally and meniscal calcifications bilaterally on the right side. The examiner determined that the right knee caused the veteran to limp and that the severity of the right knee disability may result in a total knee arthroplasty. The neurological examination revealed that the veteran did not walk with an obvious limp on the right lower limb. There was no focal weakness of the lower limbs, except he was not able to toe walk on the right lower leg because of right knee pain. The examiner observed slight flexion deformity of the right knee that was apparent when the veteran stood and obvious deformity of the right knee. The right knee measured as 43 cm and the left knee measured as 41 cm. There was an approximately 10 cm curved incision on the anterior aspect of the right knee that was not anterior. Tendon reflexes were not increased and were symmetric with the exception that the left ankle jerk was diminished as compared to the right ankle and that right and left ankle jerks were elicited with reinforcement. There was no atrophy of the limbs. The examiner noted good flexion and extension of the right knee, except for the slight flexion deformity. The veteran had no hyper-mobility of the right patella. Straight leg raising caused discomfort in the right hip region. The diagnosis was degenerative joint disease, osteoarthritis of the right knee status post cartilaginous injury right knee with surgery right knee. 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. 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 (West 1991); 38 C.F.R. §§ 4.1, 4.10 (1999). Traumatic arthritis substantiated by X-ray findings is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, but where the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by the limitation of motion. 38 C.F.R. 4.71a, Diagnostic Code (DC) 5003 (1999). In evaluating the severity of the veteran's right knee disability, the Board must consider all pertinent diagnostic codes under the VA Schedule for Rating Disabilities in 38 C.F.R. Part 4 and application of 38 C.F.R. § 4.40, regarding functional loss due to pain, and 38 C.F.R. § 4.45, regarding weakness, fatigability, incoordination or pain on movement of a joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The veteran's right knee disability is evaluated under 38 C.F.R. § 4.71a, Codes 5257. As such, a 20 percent evaluation is warranted for knee impairment resulting from moderate recurrent subluxation or lateral instability, while a 30 percent evaluation requires severe impairment. Code 5257. The right knee disability may also be evaluated under codes 5260 and 5261. Under DC 5260 limitation of flexion of the leg to 60 degrees warrants a noncompensable evaluation, to 45 degrees a 10 percent evaluation, to 30 degrees a 20 percent evaluation, and limitation of flexion to 15 degrees warrants a 30 percent evaluation. DC 5260. Under DC 5261, limitation of extension of the leg to 5 degrees warrants a noncompensable evaluation, to 10 degrees a 10 percent evaluation, to 15 degrees a 20 percent evaluation; to 20 degrees a 30 percent evaluation; to 30 degrees a 40 percent evaluation, and limitation of extension to 45 degrees requires a 50 percent evaluation. Code 5261. The veteran contends, in essence, that the symptoms associated with his right knee disability are more disabling than currently evaluated. In that connection, the Board has considered and finds credible the veteran's testimony with regard to symptoms and functional impairment regarding his service-connected right knee disability. Having reviewed the evidence, the Board finds that the evidence does not establish that the veteran experiences any subluxation or lateral instability of the right knee. In fact, examiners in 1998 determined that there was no instability of collateral or cruciate ligaments. Therefore, the veteran is not entitled to a higher disability evaluation pursuant to DC 5257. Primarily, the right knee disorder involves pain and related functional impairment. In 1996 and 1998, the veteran lacked motion on back extension and forward flexion. At worst, there was a 15 degree deficit on backward extension in 1998. Forward flexion was 105 degrees. Normal range of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II (1999). Thus, the veteran exhibited a 35 degree deficit on forward flexion in 1998. Despite the limitation of motion findings, the veteran does not satisfy the criteria for a higher disability evaluation based on DCs 5260 and 5261. However, the evidence establishes that the veteran experiences functional impairment due to pain associated with the right knee disability. Specifically, the veteran limps; he experiences pain on extreme motion; he cannot heel toe walk because of the right knee disability. Thus, the Board is of the view that the veteran's overall disability picture more nearly approximates the criteria for next highest disability evaluation based on functional loss of the service-connected right knee disability due to pain. 38 C.F.R. § 4.7, 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 207-208 (1995). Thus, the assignment of a 20 percent disability evaluation is warranted. In the absence of severe impairment (5257), or ankylosis (5256), or limitation of flexion to 30 degrees, or limitation of extension to 30 degrees a higher disability rating for the veteran's right knee is not warranted. The Board notes that the veteran is service-connected for arthritis of the right knee and is rated under DC 5257 with a 10 percent disability evaluation. The VA General Counsel has issued a precedented opinion (VAOPGCPREC 23-97) holding that a claimant who has arthritis and instability of the knee may be rated separately under Codes 5003 and 5257, if the claimant has additional disability. In determining whether additional disability exists, for purposes of a separate rating, the veteran must meet, at minimum, the criteria for a zero-percent rating for limitation of motion under Codes 5260 or 5261. In that connection, the Board finds that VAOPGCPREC 23-97 is not for application in this matter because the current evidence does not establish that the veteran has subluxation or lateral instability of the right knee and he does not meet the compensable evaluation for limitation of motion of the right knee pursuant to Codes 5260 and 5261. The evidence of record does not present such an exceptional or unusual disability picture as to render impractical the application of the regular scheduler standards and thus warrant assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The veteran has not asserted or offered any objective evidence that his service-connected right knee disability has interfered with his employment status to a degree greater than that contemplated by the regular schedular standards, which are based on the average impairment of employment. Nor does the record reflect frequent periods of hospitalization for the disability. Hence, the record does not present an exceptional case where his currently assigned 20 percent evaluation is found to be inadequate. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Accordingly, in the absence of such factors, the Board determines that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met, and; therefore, affirms the RO's conclusion that a higher evaluation on an extraschedular basis is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for right disability on a secondary basis is denied. An evaluation of 20 percent for right knee disability is granted, subject to the criteria applicable to the payment of monetary benefits. NADINE. W. BENJAMIN Member, Board of Veterans' Appeals