Citation Nr: 0007963 Decision Date: 03/24/00 Archive Date: 03/28/00 DOCKET NO. 95-02 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for muscle contraction headaches. 2. Entitlement to an evaluation in excess of 10 percent for left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Tierney, Counsel INTRODUCTION The veteran served on active duty from February 1991 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The RO, in pertinent part, granted service connection for headaches and evaluated the headaches as 10 percent disabling from October 30, 1992, and granted service connection for a left knee disability, and evaluated the left knee disability as 10 percent disabling from October 30, 1992. The veteran testified at a hearing in July 1994 before a hearing officer at the RO. In October 1997, the Board remanded the case for further development. Thereafter, the RO completed the requested development. While the case was in remand status, the RO granted a temporary total rating for convalescence for the veteran's left knee disability from May 28, 1997, through June 1997. The RO also granted an increased evaluation of 30 percent for the veteran's headache disability, from October 30, 1992. The case was returned to the Board in July 1999. The veteran's representative has submitted a brief and the case is now ready for appellate review. The Board also notes that in his written argument of February 2000, the representative contended that service connection is warranted for fascicular left sciatic nerve injury on a secondary basis. The record reflects that the VA physician who performed the June 1998 VA neurological examination of the veteran expressed his opinion that this nerve injury occurred during surgery on the veteran's left knee. The RO has not adjudicated the claim for secondary service connection for this disability. Therefore, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the issues on appeal has been obtained by the RO. 2. The veteran experiences severe headaches averaging more than one a month; the headache attacks are not completely prostrating or productive of severe economic inadaptability. 3. The veteran's left knee disability is manifested by limitation of flexion which more nearly approximates limitation to 30 degrees than 45 degrees. 4. The left knee disability does not result in limitation of extension to more than 15 degrees, and is not manifested by lateral instability or recurrent subluxation. CONCLUSIONS OF LAW 1. An evaluation in excess of 30 percent for the veteran's headache disability is not warranted. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.7, 4.10, 4.124a, Diagnostic Code 8100 (1999). 2. The veteran's left knee disability warrants a 20 percent evaluation from October 30, 1992. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5019, 5260. (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS It is contended that the veteran has daily headaches, both moderate and severe. In addition, it is contended that her left knee disability is more disabling than currently evaluated. Initially, the Board notes that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). Further, the Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected headache disability and left knee disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. 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 (1999). The Board attempts to determine the extent to which the veteran's service-connected disabilities adversely affect her 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; 38 C.F.R. §§ 4.1, 4.10 (1999). Where there is a question as to which of two evaluations should 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). Additionally, the Board observes that in a claim involving disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). I. Evaluation of Headache Disability Facts The service medical records show that she was seen beginning in May 1992 with complaints of headaches. There were various diagnoses including common migraine and tension headaches. At a VA neurology examination in November 1992, the veteran reported that her health was good until May 3, 1992, when she awoke with a headache, and had had a continuous headache since then. The examination showed that the cerebral and cerebellar functions were within normal limits. Cranial nerves II through XII were intact. There were no paraspinal or posterior neck muscle spasms. Sensory testing was normal. The diagnosis was muscle contraction (tension-type) headaches. At a personal hearing before a hearing officer at the RO in July 1994, the veteran testified that she had to leave work about four or five times a month due to headaches. She stated that she constantly had a headache and at times it was tolerable and at other times it was unbearable. The veteran testified that she had taken various medications and none had relieved the headaches. VA medical records dated from 1994 to 1998 show that the veteran continued to complain of and receive treatment for chronic headaches. She consistently reported continuous headaches. She was prescribed various medications and referred for biofeedback. Both chronic tension-type headaches and migraine headaches were diagnosed. A report of a VA X-ray examination of the cervical spine in March 1996 shows that the vertebral body heights and disc spaces were well maintained, the pedicles were intact, and there was no misalignment identified. A VA MRI of the brain and brain stem in May 1996 showed no masses, infarctions, or hemorrhages. At a VA neurology examination in July 1996, the veteran reported daily headaches, with severe headaches occurring three to four days a week. The examination showed that cranial nerves II through XII were intact. Visual fields were full and fundi were normal. The veteran had very firm posterior neck muscles. Her mental status was normal. The examiner concluded that the veteran almost certainly had muscle contraction headaches. A VA outpatient treatment record dated in March 1998 indicates that the veteran had had chronic headaches for six years, continuous day and night. The diagnosis was chronic daily headaches with severe exacerbation three to four times a week. At another VA neurology examination in June 1998, the examiner noted that the entire medical record was available and reviewed by him. It was noted that the veteran currently had daily headaches which were of two types: moderate headaches which were continuous and with which she was able to function; and severe headaches which occurred five to seven days a week. The veteran reported having no nausea, vomiting or double vision. She did report blurred vision and lightheadedness with some of the headaches. She stated that she had noticed numbness in her left leg and difficulty walking up stairs and down hill since knee surgery in May 1997. She worked full-time as a scanner operator for a newspaper, but left work two or three times a month due to her headaches. The examination showed full fields, extraocular motion and cranial nerve function. The pertinent diagnosis was chronic daily headache, migraine with aura. Analysis The service-connected headache disability has been evaluated under Diagnostic Code 8100, which provides the criteria for evaluating migraine headaches. A 30 percent rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board finds that the disability more nearly approximates the criteria for a 30 percent rating than the criteria for a 50 percent rating. In this regard, the Board notes that the evidence shows that the veteran's headaches are continuous, although they vary in severity. The medical evidence indicates that she has a mixture of moderate and severe headaches, or tension-type headaches and migraines. She has reported that the severe headaches occur more than once a month. However, she has not described completely prostrating headaches and the record does not show that her headaches have resulted in severe economic inadaptability. To the contrary, she reported at the June 1998 VA neurology examination that she only left work two or three times a month due to her headaches. Accordingly, the headache disability is appropriately rated as 30 percent disabling. II. Evaluation of Left Knee Disability Facts The service medical records show that the veteran injured her left knee in service and it was initially diagnosed as a strain and then as bursitis. At a VA orthopedic examination in November 1992, the veteran complained of pain, instability, and swelling in her left knee. She was wearing a knee brace. The examination showed no swelling, deformity, or other impairment. Range of motion of the left knee was from 0 to 110 degrees, and was limited because of pain. X-ray examination revealed no abnormality of the left knee. The diagnosis was history of left knee bursitis. A VA medical record dated in July 1993 shows that the veteran had left knee pain. There was mild swelling, and X-ray films of the knee were normal. VA medical records dated in May 1994 show that she continued to have left knee pain. Range of motion of the left knee was 20 to 100 degrees. Left quadriceps strength was 4/5. The ligaments were stable. Sensation was intact for light touch. The diagnosis was chondromalacia left knee. At the personal hearing in July 1994, the veteran testified that prolonged standing bothered her knee. She was wearing a knee brace which the military had given to her before she was discharged. She stated that the VA doctors told her to continue to wear it. The veteran indicated that her knee felt weak. She reported an incident two weeks before the hearing where her knee gave way, she fell, and went to the emergency room. She stated that she missed work from a Wednesday until the following Monday afternoon. A VA medical record dated in March 1995 shows that the veteran complained of continuous left knee pain. Range of motion was 0 to 90 degrees. There was no laxity or swelling. The diagnosis was possible meniscal injury. An arthrogram of the left knee in March 1995 showed no evidence of chondromalacia. A CT scan in March 1995 revealed findings consistent with a popliteal or Baker's cyst, suggestive of rupture of the cyst. The meniscal cartilage and cruciate ligaments appeared to be intact. There was apparent thinning of the lateral femoral cartilage. Another record dated in May 1995 shows a diagnosis of lateral subluxation left patella. A VA outpatient treatment record dated in September 1995 shows range of motion of the left knee from 0 to 130 degrees. McMurray's test was positive and the anterior drawer test was one plus. A VA orthopedic examination in June 1996 showed that the veteran walked with her left knee flexed about 10 degrees and she walked with a limp. There was no difference in thigh circumference measurements bilaterally. She resisted attempts at full extension of the left knee and complained of pain. She would not flex the knee more than 120 degrees and attempts at further motion were painful. The knee ligaments appeared to be intact. There was soft swelling in the posterior aspect of the knee which had the appearance of a Baker's cyst. There was no gross instability of the knee. X-ray films showed no bone or joint abnormalities of the left knee. The diagnosis was internal derangement of the left knee very likely a torn meniscus, and a Baker's cyst behind the left knee. A VA consultation report dated in March 1997 shows that active range of motion of the left knee was 10 to 110 degrees with complaints of pain at the end of range of motion. Passive range of motion was full with pain. It was noted that tests revealed mild laxity. A VA record dated in April 1997 shows that the veteran complained of a dislocated patella. Another VA record dated later in April 1997 shows that the veteran had nearly full range of motion of the left knee. There was effusion, joint line tenderness, crepitation and inhibition. X-ray findings were normal. The diagnosis was patellar degeneration, possible meniscus degradation. A record dated in May 1997 shows that the left knee was tender. Range of motion was from 0 to 120 degrees. There was patellar subluxation. A VA operation report dated in May 1997 shows that the veteran underwent left knee arthroscopy with lateral release. The postoperative diagnoses were arthritis and left patellar maltraction. A VA outpatient treatment record dated in June 1997 shows that the veteran had left knee range of motion from 15 to 60 degrees, comfortably, and with assistance from 5 to 95 degrees. The diagnosis was patellofemoral malalignment, status post lateral release. It was noted that she needed aggressive physical therapy to increase range of motion. Another record dated in August 1997 notes that the veteran reported less symptoms of locking and episodes of dislocations, although she reported continued pain at night. She complained of numbness over the lateral knee and in the left foot. Range of motion was from 0 to 130 degrees. There was positive effusion and medial and lateral joint line tenderness. There was crepitus with flexion and extension of the knee. There was decreased sensation on the lateral foot and motor strength was 5/5. Examination of the left knee in December 1997 showed medial and lateral joint line tenderness, no crepitation, positive apprehension, full range of motion, stable patella, well-healed surgical scars, stable anterior and posterior ligaments, and no effusions. At a VA orthopedic examination in June 1998, the veteran reported that the left knee was painful with prolonged standing or walking. Examination revealed scars of arthroscopic surgical procedure of the left knee. There was no effusion. Range of motion was from 0 to 135 degrees. The veteran had genu valgum bilaterally of 10 degrees. There was a clicking sensation between the patella and the femoral condyles on flexion and extension of the knee. The knee ligaments appeared to be intact. McMurray's test was negative. The veteran complained of pain when there was a clicking sensation in the knee. There was no evidence of thigh circumference atrophy. The veteran walked with an essentially normal gait. She had significant difficulty squatting and arising from a squatting position. There was crepitation on motion of the patellofemoral articulation with a clicking sensation on flexion and extension. The veteran grimaced when she moved the knee through a full range of motion and clicking occurred. X-ray films of the left knee revealed no bone or joint abnormality. The diagnoses were genu valgum of both knees, recurrent dislocations of the patella of the left knee, quadriceps patellar tendon malalignment of the left knee, and chondromalacia of the patellofemoral articulation of the left knee. The examiner also noted that the veteran exhibited incoordination with some resistance to flexion and extension of the knee associated with a clicking sensation. There was weakening of the knee with range of motion when clicking was encountered and the veteran complained of pain. In addition, the examiner provided his opinion that the veteran had easy fatigability of the left knee, and that there would be additional limitations of functional activity during flare- ups. The examiner further noted that the veteran worked full-time sitting at a desk and as long as she had that type of sedentary occupation, the knee symptoms should not interfere considerably with her work. Analysis The veteran's left knee disability has been evaluated as bursitis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5019, bursitis is rated on limitation of motion of the affected part, as degenerative arthritis. Pursuant to Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A 10 percent rating is warranted where flexion of the leg is limited to 45 degrees, a 20 percent rating is warranted where flexion is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 10 percent rating is appropriate where extension of the leg is limited to 10 degrees, a 20 percent rating is warranted for extension limited to 15 degrees and a 30 percent rating is warranted for extension limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. In determining the extent of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning disability factors such as lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning disability factors such as weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the evidence supports a 20 percent rating on the basis of limitation of motion. The record reflects that limitation of extension to 20 degrees was found on one occasion in May 1994. Extension was also noted to be limited to 15 degrees in June 1997, but this was during the convalescent period for which a temporary total rating has already been assigned. Otherwise, extension has been noted to be full or limited to 10 degrees. Flexion of the veteran's left knee without assistance was limited to 60 degrees in June 1997, but again a temporary total rating for convalescence was in effect in June 1997. Otherwise, flexion of the left knee has ranged from 90 degrees to full. The recorded ranges of motion do not justify an evaluation in excess of 10 percent. The record reflects that the veteran has consistently complained of left knee pain. In addition, objective evidence of left knee pain has been found. Tenderness, crepitus, weakness, incoordination and excess fatigability have also been found at various times. In addition, the June 1998 VA examiner believed that there would be additional functional impairment during flare-ups. With consideration of these related factors, the Board is satisfied that the limitation of motion more nearly approximates the criteria for a 20 percent evaluation under Diagnostic Code 5260. Although the initial VA examination in November 1992 was only positive for limitation of flexion to 110 degrees due to pain, the November 1992 examination report provides limited information and does not reflect consideration of all pertinent disability factors, as set forth in 38 C.F.R. §§ 4.10, 4.40, 4.45, and discussed in DeLuca. Therefore, with resolution of all reasonable doubt in the veteran's favor, the Board concludes that the 20 percent evaluation is warranted from the effective of service connection, October 30, 1992. Although the record reflects that weakness and excess fatigability have been found, on a number of occasions, neither weakness nor excess fatigability was found. In May 1994, quadriceps strength was decreased but was still 4/5. Significant atrophy has not been noted. The only evidence of incoordination is the report of the June 1998 VA examination, which indicates that the incoordination was only noted on resisted flexion and extension. With the exception of the June 1996 VA examination report noting that the veteran walked with a limp, the veteran's gait has been consistently described as normal. As discussed above, the veteran has generally demonstrated an ability to extend her left knee to 10 or 0 degrees and to flex her left knee to 90 degrees or more. Therefore, with consideration of all pertinent disability factors, the Board must conclude that the limitation of motion of the veteran's left knee does not more nearly approximate the criteria for a 30 percent evaluation under Diagnostic Code 5260 or 5261. The Board has also considered whether a separate compensable evaluation or an evaluation in excess of 20 percent is warranted on any other basis. Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999). In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). The record reflects that mild laxity was found in March 1997; however, the knee was not found to be unstable at that time or at any other time. Subluxation was noted on one occasion in May 1997, but was limited to the patella and has not otherwise been found to be present. Therefore, the Board must conclude that the veteran's left knee disability does not warrant even a compensable evaluation under Diagnostic Code 5257. Dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (1999). This is the maximum evaluation authorized under Diagnostic Code 5258. The pain and effusion associated with the veteran's left knee disability have been considered in the Board's determination that a 20 percent evaluation is warranted under Diagnostic Code 5260. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (1999). Although the record reflects some complaints of locking, no objective evidence of locking is of record. Therefore, the Board concludes that a separate evaluation under Diagnostic Code 5258 is not warranted. Although Diagnostic Code 5259 provides that removal of dislocated, semilunar cartilage warrants a 10 percent evaluation if it is symptomatic, the Board also finds that 38 C.F.R. § 4.14 precludes the assignment of a separate compensable evaluation under this diagnostic code. In sum, the Board concludes that an increased evaluation of 20 percent is warranted but an evaluation in excess of 20 percent or a separate compensable evaluation is not warranted. ORDER An evaluation in excess of 30 percent for headaches is denied. A 20 percent evaluation for left knee disability from October 30, 1992, is granted subject to the criteria applicable to the payment of monetary benefits. SHANE A. DURKIN Member, Board of Veterans' Appeals