BVA9507576 DOCKET NO. 93-10 223 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a chronic right knee disability. 2. Entitlement to a compensable evaluation for chronic low back strain, prior to August 6, 1992. 3. Entitlement to an increased rating for chronic low back strain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Reynolds, Associate Counsel INTRODUCTION The veteran served on active duty from January 1975 to November 1988. This appeal arises from a rating decision of May 1992 from the Louisville, Kentucky, Regional Office (RO), in which the RO determined that new and material evidence had not been received to reopen the veteran's claim for entitlement to service connection for a right knee disability. That rating action also confirmed a noncompensable evaluation for chronic low back strain, pursuant to a claim for increase received March 25, 1992. By a rating decision in February 1993, the evaluation for chronic low back strain was increased to 20 percent, effective from August 6, 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred when it denied service connection for a chronic right knee disability. He specifically alleges that his current knee disability was initially manifested while on active duty. It is also asserted that the chronic low back strain is more disabling than its respective ratings reflect. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a 10 percent evaluation for chronic low back strain prior to August 6, 1992. It is also the decision of the Board that the preponderance of the evidence is against the claim for service connection for a chronic right knee disability, and against the claim for an evaluation in excess of 20 percent, currently, for chronic low back strain. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been developed. 2. Any right knee chondromalacia in service was acute and transitory, and resolved without residuals. Post service right knee disability is not shown to be related to the veteran's active service. 3. Prior to August 6, 1992, chronic low back strain was manifested primarily by a complaint of low back pain, including on motion. 4. Chronic low back strain is currently manifested by pain and no more than moderate limitation of motion of the lumbar spine, with swelling of the low back musculature. 5. Neither an exceptional, nor unusual disability picture has been presented so as to render the regular schedular criteria inapplicable, either before August 6, 1992, or currently. CONCLUSIONS OF LAW 1. A chronic right knee disability was not incurred in or aggravated by active service. 38 U.S.C.A. § § 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). 2. A 10 percent evaluation for chronic low back strain is warranted prior to August 6, 1992. 38 U.S.C.A. § § 1155, 5107 (West 1991); 38 C.F.R. § § 3.321, 4.71a, Diagnostic Code 5295 (1991). 3. An evaluation in excess of 20 percent for chronic low back strain, currently, is not warranted. 38 U.S.C.A. § § 1155, 5107 (West 1991); 38 C.F.R. § § 3.321, 4.71a, Diagnostic Code 5295 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented claims that are plausible. He has not alleged that any records of probative value that may be associated with his claims folder and which have not already been sought are available. The Board accordingly finds that the duty to assist him, mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. I. Service Connection Service connection for a knee disability was denied by the RO by an unappealed rating decision dated in May 1989. In a May 1992 rating decision, the RO found that new and material evidence had not been submitted to reopen the veteran's claim for service connection for a right knee disability. In a decision in February 1993, a RO hearing officer found that new and material evidence had been received to reopen the claim for service connection for a right knee disability, and again denied the claim on the merits. The veteran has completed an appeal of the RO hearing officer's denial of service connection on the merits. Therefore, the Board will conduct a de novo review of the issue of entitlement to service connection for a right knee disability. As noted above, the veteran contends that he has current right knee disability which was incurred in active service. After a review of the record, the Board finds that the preponderance of the evidence is against his claim. The veteran testified at his personal RO hearing, conducted in August 1992, that he had injured his right knee in 1981 while on active duty, and again in 1987, while on active duty, with resultant swelling and discoloration of the knee. Service medical records reveal that the veteran was seen in May 1981 with a complaint of a three-day history of knee pain. The report did not indicate which knee was involved. Following physical examination, the diagnosis was chondromalacia. The balance of the service medical records are negative for any complaints or findings relative to a knee disorder. At the time of examination for separation from service, in October 1988, the veteran reported a medical history of swollen or painful joints. Physical examination of the musculoskeletal system, at that time, was unremarkable for a right knee disability. The veteran underwent an initial VA examination, subsequent to service, in January 1989, when X-ray examination of the knees revealed them to be normal, and physical examination of the both knees revealed no abnormality. The veteran was specifically found to have full range of motion of the both knees, with no instability, crepitance or swelling. He had a normal gait. The basis for the diagnosis of minimal residuals of bilateral knee strain was not reported. Post service medical treatment records reveal right knee complaints were initially reported in March 1990. When seen at a VA outpatient clinic at that time, the veteran complained of intermittent right knee pain since a sprain three months earlier, incurred while he was working around his house. He also complained of right knee swelling, and that the right knee buckled when he walked. Following physical examination, the diagnosis was mild right knee strain. In May 1992 the veteran was diagnosed as having a right anterior cruciate ligament tear. Testimony by the veteran at a RO hearing, in August 1992, was essentially an elaboration of the previously mentioned contentions. On VA examination in September 1992, the veteran reported a medical history of right knee injuries in service, in 1981 and 1986, and a post service injury in 1989. X-ray examination of the right knee was negative except for a possible indication of old Osgood Schlatter's disease. Following physical examination, the pertinent diagnoses were status post right knee injury, 1981, 1986, 1989, anterior cruciate ligament tear, and medial collateral ligament instability. It is clear that the evidence establishes that chondromalacia of an unidentified knee was clinically reported on one occasion in service, and that a right knee disability is currently manifested. The question the Board must now resolve is whether the evidence supports, or is in equipoise, as to whether the veteran's current right knee disability is etiologically attributable to the chondromalacia identified in service, or whether the preponderance of the evidence is against such a finding. Service connection may be established for disability due to injury or disease incurred in service. 38 U.S.C.A. § § 1110, 1131. Service connection may also be established for any disability diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The report of the medical examination for separation from service, conducted in October 1988, reveals the veteran's lower extremities were clinically evaluated as normal, and no abnormality, injury or residuals thereof, were noted regarding the veteran's right knee. Further, in a report of medical history, also dated in October 1988, the veteran indicated that he did not have a "trick" or locked knee. In view of the negative service separation physical examination findings, and negative medical history indications by the veteran, his general reference to a history of painful and swollen joints at that time is not sufficient to establish the presence of a right knee disability on separation from service. In addition, the report of the veteran's initial VA examination subsequent to discharge from active duty, conducted in January 1989, indicated no clinical abnormality with respect to the veteran's knees. Indeed, the medical evidence first indicates that the veteran was seen for a right knee disorder, in March 1990. At that time, the veteran related the etiology of his right knee symptoms to the fact that he had sprained his knee three months earlier while working around his house. In view of the foregoing, the Board is of the opinion that the chondromalacia, of whichever knee, identified in service, was acute and transitory and resolved without residual disability. The initial demonstration of a right knee disorder, years after service, without demonstration of continuity of symptomatology, or clinical evidence of any etiological relationship to service, is too remote from service to be reasonably related to service. Additionally, the medical history of the right knee disability reported contemporaneous with his seeking of medical treatment is deemed more probative than the current contentions relative to etiology of the right knee disability made in conjunction with a claim for VA benefits. The Board also notes that no objective medical evidence has been submitted that sufficiently demonstrates a relationship between the veteran's active service and his current right knee disability. See 38 C.F.R. § 3.303(d). Accordingly, the Board must conclude that the preponderance of the evidence is against his claim for service connection for a chronic right knee disability. 38 U.S.C.A §§ 1110, 1131; 38 C.F.R. 3.303. II. INCREASED RATING Service connection for chronic low back strain was established by a RO determination in May 1989. A noncompensable evaluation was assigned effective from November 1988. On March 25, 1992, the veteran submitted a claim for an increased (compensable) rating for the disability. A rating decision in February 1993 increased the evaluation for the disability to 20 percent, effective from August 6, 1992. Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Although the VA must consider the entire record, the most pertinent evidence is those documents created in proximity to the recent claim. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 4.1 (1994). A noncompensable disability rating contemplates lumbosacral strain with slight subjective symptoms only. A 10 percent evaluation is warranted with characteristic pain on motion. With muscle spasm on extreme forward bending, and loss of lateral spine motion, unilateral, in a standing position, a 20 percent evaluation is warranted. Severe lumbosacral strain, with listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion warrants a 40 percent evaluation. 38 U.S.C.A. § 4.71a, Diagnostic Code 5295. Slight limitation of motion of the lumbar spine warrants a 10 percent evaluation. A 20 percent evaluation is assignable for moderate limitation of motion of the lumbar spine. Severe limitation of motion of the lumbar spine warrants a 40 percent evaluation. 38 U.S.C.A. § 4.71a, Diagnostic Code 5292 (1994). A. INCREASED RATING PRIOR TO AUGUST 6, 1992 The evidence of record does contain reports of medical treatment or evaluation of the disability at issue during the one-year period immediately prior to receipt of the claim for increase on March 25, 1992. The veteran was seen at a VA outpatient clinic in February 1992 when he complained of low back pain. He reported he was able to bend, but was not able to "get back up." Physical examination of the low back revealed it was nontender and had full range of motion. Straight leg raising testing was negative. The veteran was referred for orthopedic evaluation. On VA orthopedic consultation in March 1992, physical examination revealed normal lordosis of the lumbosacral spine no listing, and negative straight leg raising testing. The assessment was mechanical low back pain. Elavil was prescribed, and the veteran was scheduled to be reevaluated at the orthopedic clinic in two months. Inasmuch as full range of motion was demonstrated on physical examination in February 1992, a compensable evaluation prior to August 6, 1992 is not warranted based on limitation of motion of the lumbar spine, pursuant to Diagnostic Code 5292. However, mechanical low back pain was diagnosed on examination in March 1992, and the veteran reported difficulty on straightening the back after bending forward. This is demonstrative of characteristic pain on motion so as to warrant a 10 percent evaluation pursuant to Diagnostic Code 5295. There has been no demonstration of muscle spasm or loss of lateral spine motion of the lumbar spine so as to warrant an evaluation in excess of 10 percent prior to August 6, 1992. As such, a 10 percent evaluation is warranted for chronic low back strain prior to August 6, 1992. Prior to August 6, 1992, the chronic low back strain did not present such an exception or unusual disability picture, with such related factors as marked interference with employment, or frequent hospitalization, so as to render the regular schedular criteria inapplicable. 38 C.F.R. § 3.321 (1991). B. INCREASED RATING FROM AUGUST 6, 1992 At a RO hearing conducted on August 6, 1992, the veteran testified that his chronic low back strain was currently manifested by pain and muscle spasm. He described the pain as constant, and increased on prolonged sitting, walking or standing. He reported muscle spasm occurred primarily at night, but also with lifting, for which he took no medication. He indicated he was no longer able to lift 50 pounds. The veteran underwent a VA orthopedic examination in September 1992. He complained of low back pain with daily lifting and prolonged sitting. Physical examination revealed no postural abnormality. Examination of the musculature of the back revealed possible minimal swelling of the lower lumbar spine. There was tenderness of the paravertebral muscles. Range of motion was forward flexion of 60 degrees, backward extension of zero degrees, left lateral flexion of 25 degrees, right lateral flexion of 35 degrees, rotation to the left of 45 degrees, and rotation to the right of 35 degrees. X-ray examination of the lumbar spine revealed the vertebral bodies and interspaces were of normal height and appearance. The diagnosis was low back pain with a probable muscular component. Inasmuch as the veteran demonstrated range of motion of the low back in excess of 50 percent of normal in all directions, except backward extension, severe limitation of motion of the lumbar spine has not been demonstrated so as to warrant an increased rating under Diagnostic Code 5292. Additionally, there has been no demonstration of listing of the spine, marked limitation of forward bending, loss of lateral spine motion, abnormal mobility on forced motion, or irregularity of joint space so as to manifest severe lumbosacral strain warranting a 40 percent evaluation under Diagnostic Code 5295. The veteran's current complaints of low back pain with muscle spasm, and clinical findings of a probable muscular component of the disability at issue is consistent with his current 20 percent evaluation pursuant to Diagnostic Code 5295. As such, an increased rating is not warranted for the chronic low back strain. The chronic low back strain does not present such an exception or unusual disability picture, with such related factors as marked interference with employment, or frequent hospitalization, so as to render the regular schedular criteria inapplicable. 38 C.F.R. § 3.321 (1994). ORDER Service connection for a right knee disability is denied. Entitlement to an evaluation in excess of 20 percent for chronic low back strain, currently, is denied. An increased rating of 10 percent for chronic low back strain, prior to August 6, 1992, is granted, subject to applicable legislation governing the award of disability benefits. U. R. POWELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.