Citation Nr: 0006902 Decision Date: 03/14/00 Archive Date: 09/08/00 DOCKET NO. 94-47 067 DATE MAR 14, 2000 On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for a right knee disability, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD John M. Clarkson, III, Counsel INTRODUCTION The veteran had active service from June 1977 to January 1988. This appeal arises from a July 1994 rating decision from the RO in Philadelphia, Pennsylvania, which among other things, assigned a separate 10 percent rating for the veteran's service-connected right knee disability. The veteran had previously been in receipt of one 10 percent rating for arthritis of both knees. The effective date of assignment of this separate 10 percent rating was in June 1993. Temporary total post-surgical convalescent ratings were in effect for the right knee disorder from December 14, 1993 through January 31, 1994, and from November 22, 1994 through December 31, 1994. The veteran was accorded a hearing with regard to his claim for an increased rating for his right knee disability before a hearing officer at the RO in January 1995, and a transcript of that hearing is included in the claims folder. In a May 1995 hearing before a hearing officer at the RO, the veteran testified regarding the severity of his service-connected disabilities, including his right knee disability. A transcript of that hearing is also included in the claims folder. In a February 1997 rating decision, the RO, among other things, increased the rating for the veteran's service-connected right knee disability to the current 20 percent rating from June 1993. In January 1999, the Board of Veterans' Appeals (Board) remanded the claim to the RO. This claim is now ready for appellate review. FINDING OF FACT The veteran's service-connected right knee disability is manifested by complaints of right knee pain, a history of multiple right knee surgeries, a normal gait on examination, clinical findings showing an absence of subluxation, incoordination, weakened movement or pain upon active movement, no more than slight limitation of motion, and x-ray studies showing post-traumatic osteoarthritic changes. 2 - CONCLUSION OF LAW A rating in excess of 20 percent for the veteran's service- connected right knee disability is not warranted. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, and 5261 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background During service, in June 1987, the veteran had a right knee arthroscopy with shaving of the patellofemoral joint. The diagnoses include chondromalacia, synovitis, and arthritis. During VA hospitalization in December 1993, the veteran underwent a right knee arthroscopy with removal of a loose body. The most recent surgery on the veteran's right knee, in late 1994, was at a private hospital. It involved an arthroscopy with removal of loose bodies and a partial medial meniscectomy. At a hearing in January 1995 before a hearing officer at the RO, the veteran testified that he was employed as a part-time, "flexible" employee by the U.S. Postal Service (USPS), and he drove a large mail delivery truck. He explained that his right knee bothered him when he drove in cold weather. He had aching pain and swelling in his right knee joint two or three times a week. The veteran indicated that he could not fully extend or pull back his right leg when his right knee became swollen, and he sometimes wore an ace bandage to provide additional support for his knee. He testified that, due to physical limitations resulting from his right knee and left knee disabilities, he had been required to transfer from duties as a mail processor and had become a mail delivery truck driver; losing a pay raise in transferring. At home, he sometimes had problems with his right knee giving way. The veteran's wife - 3 - indicated that he was unable to play with his children or perform certain household chores. In January 1995, a letter, dated June 1988, from the Harrisburg, Pennsylvania field division of the USPS, was added to the claims folder. The letter was addressed to the veteran and informed him that he had been found medically unsuitable for employment as a mail handler, due to medical findings that he had bilateral knee arthritis, which was thought to be likely to increase in severity with the continuous heavy lifting and walking required of a mail handler. The letter added that postal employment would place the veteran's health and safety in jeopardy. In a March 1995 letter, J.R. Hamsher, M.D., indicated that the veteran was directed to use crutches for three weeks following right knee arthroscopic surgery performed in November 1994. In a May 1995 hearing before a hearing officer at the RO, the veteran testified that he was now driving a truck with an automatic transmission, and he indicated that this was not as difficult for his legs as driving a truck with a manual transmission had been. Records of VA medical treatment of the veteran's knees, dating from March 1993 to February 1995, include a health care provider's assessment that the veteran had chronic bilateral knee pain, status postoperative multiple arthroscopic knee surgeries. Records of VA medical treatment of the veteran, dating from October 1994 to June 1995, include a June 1995 medical note, in which the veteran's complaints of bilateral knee instability and chronic pain were noted. The health care provider indicated that there was bilateral medial lateral laxity on clinical evaluation. The veteran was accorded a VA orthopedic examination in November 1996. He complained of right knee pain, and gave a history which included three operations on his right knee. The examiner reported that each of the surgical procedures consisted of debridement of patellar degenerative cartilage, and most recently, a 4 - lateral release had been performed. The veteran reported that multiple loose bodies were found and extracted. He wore a brace on his right knee for varus/valgus instability, with a question of buckling. He was working as a truck driver. On clinical evaluation, the veteran walked with a normal gait. He had right knee effusion. Varus/valgus testing failed to disclose significant instability, and Lachman and posterior drawer signs were negative for abnormalities. The veteran had what was described as tremendous right knee patellofemoral crepitus, with pain on direct pressure, and right-sided medial joint line pain. His range of motion was 100 degrees minus zero degrees in the right knee. McMurray's and pivot shift tests were negative for abnormalities. The examiner indicated that the veteran's pain made it somewhat difficult for him to relax during the examination. The examiner's assessment was of right knee patellofemoral arthritis, with significant degeneration of the patella hyaline cartilage. The examiner opined that this cartilage degeneration may have been the source of the multiple loose bodies referred to in the veteran's medical history. The examiner noted that there was no evidence of varus/valgus instability or loss of cruciate ligaments. The right knee effusion was thought to be consistent with a diagnosis of right knee degenerative patellofemoral arthritis. In the January 1999 remand, the Board directed that the veteran be scheduled for a VA orthopedic examination to determine the severity of his service-connected right knee disability. The VA examination was to comport with the holding of the United States Court of Appeals for Veterans Claims (Court) in DeLuca v. Brown, 2 Vet. App. 202 (1995) and the provisions of 38 C.F.R. 4.40 and 4.45. The examiner was requested to report the veteran's pertinent medical complaints, symptoms, and clinical findings, including both active and passive ranges of motion of the right knee in degrees and in all planes. The presence or absence of subluxation and/or lateral instability was to be reported if present, and the examiner was requested to note any weakened movement, excess fatigability, pain on undertaking motion, or incoordination caused by the right knee disability. On February 1999 VA orthopedic examination, the examiner reported having reviewed the veteran's medical records. The veteran gave a history of multiple - 5 - right knee surgeries. He complained of recurrent right knee pain, which increased in severity with squatting, bending and walking. He reported that he occasionally wore a brace, and was working as a delivery contractor. On clinical evaluation, the veteran was ambulatory and did not evidence a limp. The right knee was normal in external appearance, with a 1/4 inch increased circumference over the left knee. Range of motion of the right knee included extension to zero degrees, and flexion to 115 degrees. Cruciate and collateral ligaments were intact. There was no evidence of subluxation noted with the right knee under stress. There was no evidence of incoordination, weakened movement or pain upon active movement of the right knee. The right knee was tender to palpation over the medial joint line, but McMurray's sign was negative for abnormalities. Subpatellar crepitation was noted upon flexion and extension of the right patellofemoral joint. The veteran's legs were equal in length, and were without measurable circumferential atrophy of either thigh or calf. Deep tendon reflexes were 1+ and symmetrical bilaterally at the knees and ankles. Extensor hallucis longus power was normal. Sensory and vascular examination was within normal limits. The examination report also included the examiner's comments on a March 1999 VA x-ray study of the veteran's right knee. The examiner reported that x-ray study of the right knee showed post-traumatic osteoarthritic changes. The diagnosis was osteoarthritis of the right knee. A March 1999 VA x-ray study of the veteran's right knee revealed no evidence of a fracture or joint effusion. There was tricompartment degenerative joint disease, with significant joint space narrowing noted at the medial compartment. There was marginal osteophyte formation along the superior aspect of the patella, with narrowing of the patellofemoral joint. A well-corticated bone fragment was noted inferior to the patella, and the examiner opined that this probably represented an old partial avulsion. There was a large ovoid and calcified bone fragment within the anterior joint space, which was consistent with a loose body. The examiner's impressions were tricompartment degenerative joint disease, most severely affecting the medial compartment as well as the patellofemoral joint, and a loose body within the anterior joint space. 6 - Analysis As an initial matter, the Board finds that the veteran's claim for an increased rating for his service-connected right knee disability is "well-grounded" within the meaning of 38 U.S.C.A. 5107(a). The Court has held that, when a veteran claims a service-connected disability has increased in severity, the claim is well-grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Disability evaluations are determined by the application of a schedule of ratings which is based upon the average impairment of earning capacity. 38 U.S.C.A. 1155; 38 C.F.R. Part 4. In VAOGCPREC 23-97, it was indicated that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 "based on additional disability". VAOGCPREC 23-97, reissued July 24, 1997. See also VAOGCPREC 9-98, dated August 14,1998. Therefore, multiple disability ratings may be warranted for the veteran's service-connected right disability if indicated by the medical evidence. Under Diagnostic Code 5257, moderate impairment of either knee, including recurrent subluxation or lateral instability, warrants a 20 percent rating. A 30 percent rating requires severe impairment. 38 C.F.R. 4.71a, Code 5257. Under Diagnostic Code 5262, malunion of the tibia and fibula of either lower extremity warrants a 20 percent rating when the disability results in moderate knee or ankle disability. A 30 percent rating requires that the malunion produce marked knee or ankle disability. 38 C.F.R. 4.71a, Code 5262. The RO has rated the right knee disorder, in part, under Diagnostic Code 5262. However, the Board finds that this Code is inapplicable. There has been no fracture of the right tibia or fibula here and there is no malunion of the tibia or fibula. In any event, we find that a 20 percent rating can be assigned under Diagnostic Code 5257, because the right knee has been the subject of three surgeries and the postoperative status right knee disorder is compatible with moderate impairment. In the absence of any degree of subluxation - 7 - or lateral instability, we do not find the severe right knee impairment required for a 30 percent rating. Under Diagnostic Code 5260, limitation of flexion of either leg to 30 degrees warrants a 20 percent rating. A 30 percent rating requires that flexion be limited to 15 degrees. 38 C.F.R. 4.71a, Code 5260. Under Diagnostic Code 5261, limitation of extension of either leg to 15 degrees warrants a 20 percent rating. A 30 percent rating requires that extension be limited to 20 degrees. 38 C.F.R. 4.71a, Code 5261. On February 1999 VA orthopedic examination, the examiner reported that the veteran's right knee demonstrated flexion to 115 degrees, and extension to zero degrees. Accordingly, a rating in excess of 20 percent for the veteran's right knee disability is not warranted under either Code 5260 or Code 5261. Additionally, having recognized formulation of the current 20 percent rating under Code 5257, a question arises as to assignment of a separate 10 percent rating under the above noted General Counsel opinions. To warrant a separate 10 percent rating, the limitation of motion of the knee would have to justify assignment of a noncompensable rating under Code 5260 or 5261. As shown in Plate 11 of 38 C.F.R. 4.71, a full range of motion (flexion and extension) of the knee is zero to 140 degrees. Under Code 5260, a noncompensable rating is warranted where flexion is limited to 60 degrees. 38 C.F.R. 4.71a, Code 5260. Under Code 5261, a noncompensable rating is warranted where extension is limited to 5 degrees. 38 C.F.R. 4.71a, Code 5261. As indicated above, the clinical findings show that the veteran's right knee range of motion does not meet the criteria required for noncompensable ratings under either Code 5260 or Code 5261. In accordance with 38 C.F.R. 4.1, a disability must be viewed in relation to its history and there must be an emphasis upon the limitation of activity imposed by the disabling condition. In that regard, the Board notes that, on the most recent orthopedic examination of the veteran, in February 1999, the examiner noted that the veteran walks without a limp, and the evidence shows that he has continued his employment as a truck driver with USPS. - 8 - Pursuant to the holding of the Court in DeLuca, supra, disability ratings based on limitation of motion do not subsume 38 C.F.R. 4.40 and 4.45. In DeLuca, the claimant sought an increased disability rating for a musculoskeletal disorder, and the Court indicated that the medical examiner should be asked to determine whether the joint in question exhibited pain on use, weakened movement, excess fatigability or incoordination and that these symptoms must be considered in the rating determination. In this case, on VA orthopedic examination in February 1999, the examiner reported that the veteran's right knee showed no evidence of incoordination, weakened movement or pain upon active movement of the right knee. The veteran's complaints of right knee pain have been considered, but the Board concludes that the current 20 percent rating accurately reflects the severity of the service-connected right knee disability. Accordingly, and for the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 20 percent for the veteran's right knee disability, and the claim must be denied. ORDER A rating in excess of 20 percent for a right knee disability is denied. BRUCE E. HYMAN Member, Board of Veterans' Appeals 9 -