Citation NR: 9734367 Decision Date: 10/09/97 Archive Date: 10/16/97 DOCKET NO. 96-41 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased disability evaluation for status post total left knee replacement, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD W. Yates, Associate Counsel INTRODUCTION The veteran served on active duty from October 1978 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. That rating decision confirmed and continued a 20 percent disability evaluation for the veteran’s service-connected left knee disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in denying an increased disability evaluation for his service-connected left knee disorder. He argues that his service-connected status post total left knee replacement warrants a higher disability evaluation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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 an increased disability rating of 30 percent for the veteran’s service-connected status post left total knee replacement. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. The veteran’s status post total left knee replacement is manifested by subjective complaints of pain and is productive of range of motion from 10 degrees extension to 80 degrees flexion, with no effusion, instability or neurovascular abnormality and no evidence of loosening or other problems on X ray examination. CONCLUSION OF LAW The schedular criteria for a 30 percent disability evaluation, and not in excess thereof, for status post left total knee replacement have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.322, 4.1, 4.10, 4.40, 4.45 Diagnostic Code 5055 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Considerations The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. His assertion that his service- connected status post left total knee replacement has increased in severity is plausible. See Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (where a veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well-grounded claim for an increased rating). All relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service-connected disabilities are rated in accordance with a schedule of ratings which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1996). The disability ratings evaluate the ability of the body to function as a whole under the ordinary conditions of daily life, including employment. Evaluations are based on the amount of functional impairment; that is, the lack of usefulness of the rated part or system in self support of the individual. 38 C.F.R. § 4.10 (1996). In DeLuca v. Brown, 8 Vet.App. 202 (1995), the United States Court of Veterans Appeals (Court) held that 38 C.F.R. §§ 4.40, 4.45 (1996) were not subsumed into the diagnostic codes under which a veteran’s disabilities are rated. Therefore, the Board has to consider the “functional loss” of a musculoskeletal disability under 38 C.F.R. § 4.40 (1996), separate from any consideration of the veteran’s disability under the diagnostic codes. DeLuca, 8 Vet.App. at 206. Functional loss may occur as a result of weakness or pain on motion of the affected body part. 38 C.F.R. § 4.40 (1996). The factors involved in evaluating, and rating, disabilities of the joints include: weakness; fatigability; incoordination; restricted or excess movement of the joint; or, pain on movement. 38 C.F.R. § 4.45 (1996). These factors do not specifically relate to muscle or nerve injuries independently of each other, but rather, refer to overall factors which must be considered when rating the veteran’s joint injury. DeLuca, 8 Vet.App. at 206-07. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of a current disability. 38 C.F.R. § 4.2 (1996); Peyton v. Derwinski, 1 Vet.App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). II. Factual Background The RO has retrieved the veteran’s service medical records and they appear to be complete. The veteran’s discharge summary report revealed that he served in the United States Air Force from October 1978 to March 1988. The report of his entrance examination, dated October 1978, indicated that he had previously underwent a meniscectomy on his left knee in 1976. The report noted a well healed 7 centimeter long scar and that his left knee was at full strength and had a full range of motion. In June 1985, the veteran was seen for complaints of stiffness and swelling in his left knee. A hospitalization summary report, dated September 1985, noted that the veteran was a varsity football player in the service and that he started experiencing pain in the left knee during practice. No specific trauma prior to that time was identified. The report indicated that he underwent an arthroscopy of his left knee, which “revealed degenerative joint disease and post-traumatic osteoarthritis with old medial meniscectomy, with good appearing rim.” The report also diagnosed the veteran with chondromalacia, media and lateral femoral condyles, and degenerative lateral meniscus, left knee. The report attributed these conditions to the veteran’s post-traumatic osteoarthritis of the left knee. In March 1987, the veteran suffered increasing left knee pain after a minor knee twist. Follow-up radiographic studies revealed severe tri-compartment osteoarthritis in the left knee. In April 1987, he underwent an arthroscopy with the removal of 1.5 centimeters of osteocartilaginous loose body from the left knee. In September 1987, because of continued pain, swelling and stiffness in his left knee, the veteran was referred to the Medical Evaluation Board. In January 1988, the Medical Board issued its findings and recommended discharge with severance pay. The report of the Board’s findings concluded that the veteran’s left knee disorder was 30 percent disabling and that 10 percent of this disability existed prior to service. In May 1988, the RO issued a rating decision that granted service connection for post-traumatic arthritis left knee, status post open medial meniscectomy and status post arthroscopy and assigned a 20 percent disability rating, effective March 1988. In April 1989, a VA compensation and pension examination was conducted. Physical examination of the veteran’s left knee revealed a range of motion from 0 degrees extension to 85 degrees of flexion. The report concluded with a diagnosis of post-operative left meniscectomy and arthroscopy times two of the left knee. Medical treatment reports, dated May 1993 through July 1995, were submitted from the veteran’s private physicians. A May 1993 treatment report noted that the veteran had complaints of severe pain in his left knee for the past four months. X ray examination of the left knee revealed severe multi- compartmental degenerative arthritis of the left knee, most marked in the medial compartment, but also present in the lateral compartment and severe in the patellofemoral area as well. In June 1993, the veteran underwent a left total knee arthroplasty. A June 1993 treatment report indicated that this procedure was performed without complications. Follow- up treatment reports show that he underwent extensive physical therapy. In September 1993, the veteran underwent an arthroscopy and manipulation of the left knee. The treatment report noted a pre-operative range of motion of his left knee of 10 degrees extension to 30 degrees flexion and a post-operative range of motion of 5 degrees extension to 110 degrees flexion. In June 1995, the veteran was seen for a follow-up examination of his left knee. The report of this examination noted that he had a range of motion in his left knee from 10 degrees extension to 80 degrees flexion. The report indicated that his left knee was stable to varus and valgus stressing, his patella was freely movable and there was no swelling. X ray examination of his left knee revealed “excellent position of the components with no signs of radiographic loosening.” A July 1995 treatment report noted that his left knee’s range of motion was from 10 degrees extension to 80 - 85 degrees flexion. III. Analysis A total prosthetic knee replacement warrants a 100 percent evaluation for one year following implantation of the prosthesis. With chronic residuals, consisting of severe painful motion or weakness in the affected extremity, a 60 percent evaluation for a prosthetic knee replacement is warranted. With an intermediate degree of residual weakness, pain or limitation of motion, the knee should be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum rating for an individual prosthetic knee replacement is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (1996). Ankylosis (immobility) of the knee in an extremely unfavorable position with flexion at an angle of 45 degrees or more warrants a 60 percent evaluation. Ankylosis in flexion between 20 and 45 degrees warrants a 50 percent evaluation, and with flexion between 10 degrees and 20 degrees, a 40 percent evaluation is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (1996). Recurrent subluxation or lateral instability of either knee which is severe warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1996). Limitation of flexion of the knee to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (1996). Limitation of extension of the knee to 45 degrees warrants a 50 percent evaluation, to 30 degrees, warrants a 40 percent evaluation, and to 20 degrees, warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (1996). Nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent evaluation. Malunion of the tibia and fibula with marked knee disability warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (1996). Full range of motion for the knee is from 0 degrees (sometimes referred to as 180 degrees) full extension, to 140 degrees full flexion. 38 C.F.R. § 4.71, Plate II (1996). 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. However, when limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint affected by limitation of motion, to be combined -- not added -- under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1996). Diagnostic Codes 5313 and 5314 (1996) provide for disability evaluations for the posterior thigh group (muscle group XIII) affecting function of the extension of the hip and flexion of the knee and for the anterior thigh group (muscle group XIV) involving extension of the knee and simultaneous flexion of the hip and knee, respectively. Each of these two muscle groups provides a noncompensable evaluation for slight impairment, a 10 percent evaluation for moderate impairment, a 30 percent evaluation for moderately severe impairment and a 40 percent evaluation for severe impairment of the respective muscle group. Id. 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 for the higher rating. 38 C.F.R. § 4.7 (1996). Any reasonable doubt regarding degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1996). A. No Ratable Disability Present at the Time of Entry Into Active Service The evaluation of a service-connected disability which preexisted service must take into account the level of such disability at the time of entry into service. In cases involving aggravation by active service, the disability rating assigned will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existed at that time. It is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule. However, if the disability is total, no deduction will be made. If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made. 38 C.F.R. § 3.322(a) (1996). As noted in the November 1994 rating decision, the RO concluded that the veteran's left knee disorder remained disabled to the degree of 30 percent under Diagnostic Codes 5055, relating to a knee replacement, and 5003, relating to degenerative arthritis. In light of the preservice injury to the veteran’s left knee and the post service findings, the RO applied a 10 percent deduction under the provisions of 38 C.F.R. § 3.322, which reduced the veteran's disability rating to the 20 percent disability level. After a thorough review of the evidence of record, the Board concludes that a deduction of 10 percent is not warranted pursuant to 38 C.F.R. § 3.322. As noted on his entrance examination, dated October 1978, the veteran’s left knee was at full strength, had a full range of motion and was status post-meniscectomy with a full recovery. The report further indicated that the surgical scar from his prior left knee surgery was well healed. A September 1985 treatment report also revealed that although he underwent a left medial meniscectomy prior to entering the service, his left knee was able to perform well enough for him to qualify for the varsity football team. A rating for his left knee at the time of entrance into active service on the basis of limitation of motion would yield a noncompensable evaluation. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (1996). His surgical scar would also yield a noncompensable evaluation 38 C.F.R. § 4.71a, Diagnostic Codes 7803-7805 (1996). Similarly, without an indication of X ray evidence of arthritis, a compensable evaluation for the left knee disorder at the time of entrance into active service based upon degenerative arthritis would not be appropriate. 38 C.F.R. § 4.71a, Codes 5003, 5010 (1996). Therefore, the degree of disability manifested by the veteran’s left knee “at the time of entrance into active service” must be determined to be noncompensable, to the extent that it is ascertainable at all. Thus, the Board finds that the deduction of 10 percent from the evaluation assigned to the left knee was improper in light of the provisions of 38 C.F.R. § 3.322 (1996). B. Increased Rating for Left Knee Disorder The veteran's service-connected status post left total knee replacement is rated as 30 percent disabling pursuant to Diagnostic Codes 5055, relating to knee replacements, and 5003, relating to degenerative arthritis. As noted above, a 30 percent rating is the minimum rating for a knee replacement. Where there are intermediate degrees of residual weakness, pain or limitation of motion, these symptoms are to be rated by analogy to Diagnostic Codes 5256, for ankylosis, 5261 for limitation of extension, or 5262 for impairment of the tibia and fibula. A 60 percent rating is warranted for chronic residuals of prosthetic replacement of the knee joint consisting of severe painful motion or weakness in the affected extremity. In evaluating the veteran's left knee disorder, the Board has considered all potentially applicable diagnostic codes. However, review of the evidence of record does not reflect the presence of ankylosis of the knee such to provide evaluation pursuant to Diagnostic Code 5256, limitation of extension to 30 degrees to establish entitlement to a 40 percent disability evaluation pursuant to Diagnostic Code 5261 or nonunion of the tibia and fibula with loose motion requiring a brace to establish entitlement to a 40 percent disability evaluation pursuant to Diagnostic Code 5262. The veteran’s most recent treatment reports, dated June 1995 and July 1995, indicated that his left knee was productive of range of motion from 10 degrees extension to 80 degrees flexion, stable to varus and valgus stressing, with no effusion or neurovascular abnormality and no evidence of loosening or other problems on X ray examination After review of the evidence of record, the Board concludes that the veteran's left knee disorder is most appropriately evaluated as 30 percent disabling pursuant to Diagnostic Code 5055. His current disability picture, as identified within the June 1995 and July 1995 treatment reports, consists of a moderate limitation of motion, from 10 degrees extension to 80 degrees flexion, when viewed in light of 38 C.F.R. § 4.71, Plate II (1994), which provides that full range of motion is from 0 degrees to 140 degrees, with subjective complaints of pain in the left knee. There was no effusion and the knee was stable to valgus and varus stresses. The July 1995 treatment report noted that his left knee was neurovascularly intact and that X ray examination revealed that the prosthesis was in “excellent position” with no evidence of loosening. Accordingly, the symptoms expressed by the veteran, including pain on use of the left knee, have been carefully considered, especially with respect to functional impairment. 38 C.F.R. §§ 4.10, 4.40 (1996). In the absence of a showing of ankylosis, instability, or weakness, and with minimal limitation of motion, the Board does not find functional impairment due to pain greater than the 30 percent currently assigned. Viewed in this context, the reported symptoms do not, in the opinion of the Board, show such a diminution/lack of usefulness of a bodily system such to meet the criteria for a 40 percent disability evaluation even when considering the provisions of 38 C.F.R. § 4.7 (1996). The evidence as presented does not establish limitation of extension to 30 degrees, ankylosis or nonunion of the tibia and fibula with loose motion requiring a brace such to meet the criteria for an increased disability evaluation under any of the applicable diagnostic codes. ORDER An increased rating of 30 percent, and not in excess thereof, is granted for status left total knee replacement, subject to the law and regulations governing the payment of monetary awards. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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, 102 Stat. 4105, 4122 (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. - 2 -