Citation Nr: 0100144 Decision Date: 01/04/01 Archive Date: 01/11/01 DOCKET NO. 99-20 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an increased rating for chronic ligamentous strain and arthralgia of the right knee, evaluated as 10 percent disabling. 2. Entitlement to a compensable evaluation for residual shrapnel wound scars of the right hand. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from March 1967 to March 1969. This matter comes on appeal from an April 1999 decision by the Boise VA Regional Office. The evaluation provided for the service-connected right knee disability was increased to 10 percent in an August 1999 rating decision. FINDINGS OF FACT 1. Manifestations of the service-connected right knee disability include limitation of flexion to 130 degrees, 15 degrees of hyperextension, and complaints of chronic pain requiring medication for relief. 2. The veteran has barely visible residual shrapnel wound scars of the right hand without demonstrable swelling, color change, limitation of motion, or loss of strength or sensation. CONCLUSION OF LAW 1. A rating greater than 10 percent for chronic ligamentous strain and arthralgia of the right knee is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Codes 5257, 5260, 5261 (2000). 2. A compensable evaluation for residual shrapnel wound scars of the right hand is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.118, Codes 7804, 7805 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 . Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The requirements set forth in these regulations, mandating an evaluation of the complete medical history of the veteran's claimed disability, operate to protect veterans against adverse decisions based on a single, incomplete or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. 38 C.F.R. §§ 4.1, 4.2 ; Schafrath, 1 Vet. App. at 593-94. The veteran's disability, however, must be reviewed in relation to its history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 ; where there is a question as to which or two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 ; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 ; Schafrath, 1 Vet. App. 589. In any case, with particular regard to the veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 . The United States Court of Appeals for Veterans Claims (Court) has held that a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 . Inquiry must also made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45 . The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. 38 C.F.R. § 4.59 . Total knee replacement is evaluated under 38 C.F.R. § 4.71(a), Diagnostic Code 5055, which provides that intermediate degrees of residual weakness, pain, or limitation of motion are to be rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee); 5261 (limitation of extension); and 5262 (impairment of the tibia and fibula), with a minimum 30 percent rating assigned under Diagnostic Code 5055. The next higher evaluation under Diagnostic Code 5055, a 60 percent rating, requires evidence of chronic residuals consisting of severe painful motion or weakness in the affected extremity. A total evaluation of 100 percent is given for the period of one-year following prosthetic replacement of the knee joint. 38 C.F.R. § 4.71(a), Diagnostic Code 5055 . A knee impairment with recurrent subluxation and lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257 . Evidence of dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint will result in the assignment of a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The symptomatic removal of semilunar cartilage will result in a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259 . Limitation of flexion of a leg is rated zero percent when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 . Limitation of extension of a leg is rated zero percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, and 30 percent when limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 . 38 C.F.R. § 4.71, Plate II , reflects that normal flexion and extension of the knee is from 0 to 140 degrees. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003 . However, when the 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 such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Arthritis due to trauma and substantiated by X-ray findings is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. General Counsel for VA, in an opinion dated July 1, 1997, (VAOPGCPREC 23-97), held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Code 5003, which provides for the presence of arthritis, and Diagnostic Code 5257 which provides for instability. General Counsel stated that when a knee disorder is already rated under Diagnostic Code 5257 based upon instability of the knee, the veteran may also be entitled to a separate rating for arthritis if the veteran has limitation of motion which at least meets the criteria for a zero-percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or Diagnostic Code 5261 (extension limited to 5 degrees or more). If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. General Counsel in VAOGCPREC 9-98 held that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. See also Degmetich v. Brown, 104 F. 3d 1328, 1331 (Fed. Cir. 1997). Where additional disability is shown, a veteran rated under 5257 can also be compensated under 5003 and vice versa. Superficial scars, tender and painful on objective demonstration, warrant a 10 percent evaluation. Other scars are rated on limitation of function of the part affected. 38 C.F.R. § 4.118, Codes 7804, 7805. Analysis Right Knee Disability With respect to the service-connected right knee disability, the record includes the reports of VA examinations conducted in July 1969, December 1998, and August 1999. In July 1969, clinical examination was unremarkable except for minimal pain on full extension. The most recent VA examinations showed that manifestations of the right knee disability include limitation of flexion to 130 degrees and 15 degrees of hyperextension, as well as at most mild tenderness of the knee. Although the veteran has reported swelling and instability of the right knee, the reports of the 1998 and 1999 examinations specifically note the absence of swelling and instability. Further, x-rays of the right knee in May 1999 were interpreted as being normal. Accordingly, an increase in the presently assigned 10 percent evaluation on the basis of limitation of motion or instability is not in order. 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Codes 5257, 5260, 5261. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. The Court of Appeals for Veterans Claims has held that when a Diagnostic Code provides for compensation based solely upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In this instance, the Board finds that the veteran has not demonstrated any additional functional loss to warrant an increased evaluation based on 38 C.F.R. §§ 4.40, 4.45, 4.59. The 10 percent evaluation currently assigned is based on the veteran's complaints of pain and other subjective symptoms. The Board finds that the veteran has evidenced no additional manifestations not already contemplated, such as atrophy, weakness, incoordination, swelling or deformity. The veteran has submitted no competent medical evidence to support his assertions. Based on the foregoing, the Board finds that a higher rating based on 38 C.F.R. §§ 4.40, 4.45, 4.59 is not warranted. The Board also would note at this point that the veteran is not eligible for a separate ratings for her knee disability based on arthritis pursuant to VAOPGCPREC 23-97, as the record does not contain medical evidence documenting a diagnosis of arthritis of the right knee or X-ray evidence establishing degenerative arthritis as is required under either Diagnostic Code 5003 or 5010. Moreover, there is no medical evidence of any compensable motion limitation as to either knee joint. Right Hand Scars The veteran has related a history of pain, stiffness, and weakness of the right hand, requiring massage and medication for relief. The reports of VA examinations in July 1969 and December 1998, however, show that the barely visible residual shrapnel wound scars of the right hand are well-healed and nontender. No swelling, color change, limitation of motion, or loss of strength or sensation of the right hand was evident. Based on these unremarkable findings reflecting the absence of any indicia of measurable functional impairment, a compensable evaluation for the residual shrapnel wound scars of the right hand is not in order. No manifestations such as atrophy, weakness, incoordination, swelling or deformity such as to warrant a compensable evaluation based on the veteran's complaint of pain are shown. Again, no competent medical evidence to the contrary has been presented. The evidence is not so evenly balanced that there is doubt as to any material issue.38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.118, Codes 7804, 7805. ORDER An increased rating for chronic ligamentous strain and arthralgia of the right knee is denied. A compensable evaluation for residual shrapnel wound scars of the right hand is denied. WAYNE M. BRAEUER Veterans Law Judge Board of Veterans' Appeals