Citation Nr: 0106863 Decision Date: 03/08/01 Archive Date: 03/16/01 DOCKET NO. 98-05 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an increased rating for postoperative residuals of a lateral meniscectomy, arthrotomy, arthroscopic debridement, and status-post total left knee replacement, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Edward Walls, Associate Counsel INTRODUCTION The veteran served on active duty from September 1969 to September 1971. His appeal comes before the Board of Veterans' Appeals (Board) from an April 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied the veteran's claim for a rating in excess of 30 percent for postoperative residuals of a lateral meniscectomy, arthrotomy, arthroscopic debridement, and status-post total knee replacement. The veteran also appealed that part of the RO's April 1997 decision denying secondary service connection for a right knee disability and increasing the rating for his residuals of a left shoulder injury from zero percent to 10 percent. These latter two claims were addressed in a Supplemental Statement of the Case issued in March 1998. However, there has been no subsequent receipt of any correspondence that can be construed as a Substantive Appeal, timely or otherwise, of either claim. Under these circumstances, there is no issue as to the timeliness of a Substantive Appeal, and the sole issue in appellate status is the claim for a rating in excess of 30 percent for postoperative residuals of a lateral meniscectomy, arthrotomy, arthroscopic debridement, and status-post total knee replacement. 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.302 (2000). The veteran testified in January 2001 at a Travel Board hearing before a member of the Board sitting in Phoenix, Arizona. FINDINGS OF FACT 1. The RO has obtained and fully developed all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's service-connected postoperative residuals of a left lateral meniscectomy, arthrotomy, arthroscopic debridement, and total left knee replacement are symptomatic and productive of functional impairment, to include pain, weakness, slight instability, and limitation of flexion to 110 degrees; however, the overall degree of disability is not consistent with more than moderate or intermediate degrees of weakness, pain, and limitation of motion of the left knee. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for postoperative residuals of a lateral meniscectomy, arthrotomy, arthroscopic debridement, and status-post total left knee replacement have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5257, 5260, 5261 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that during the pendency of the appellant's appeal, but after the case was forwarded to the Board, the Veterans Claims Assistance of Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) became effective. This liberalizing legislation is applicable to the appellant's claims. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). It essentially eliminates the requirement that a claimant submit evidence of a well- grounded claim, and provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue of an increased rating for a left total knee replacement have been obtained. The evidence includes treatment records and a disability evaluation examination. The Board does not know of any additional relevant evidence which is available. Therefore, no further assistance to the veteran with the development of evidence is required. The Board also finds that requirements regarding notice which must be provided to the veteran pursuant to the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) have been satisfied by the letters and statements of the case which were provided to the veteran by the RO. Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned evaluations are based, as far as practicable, on the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2000). Regulations require that, where there is a question as to which of two evaluations is to 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40; see also DeLuca v. Brown, 8 Vet. App. 202 (1995) (holding that when a veteran is rated under a code that contemplates limitation of range of motion, 38 C.F.R. §§ 4.40 and 4.45 must be considered, and any additional range of motion loss due to pain, weakened movement, excess fatigability, or incoordination must be noted). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and, (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. An RO decision in March 1972 granted the veteran's claim for service connection for residuals of a left knee injury and assigned a 20 percent rating. After multiple surgical procedures and a VA compensation examination in June 1985, an RO decision in August 1985 increased the rating to 30 percent, which was subsequently reduced to 20 percent by an RO decision in October 1987. Following a lateral meniscectomy, arthrotomy, and arthroscopic debridement of the left knee, an RO decision in July 1992 increased the rating to 30 percent. Medical evidence shows that the veteran underwent a left total arthroplasty in December 1995. An RO decision in February 1996 granted an increased rating to 100 percent, from December 4, 1995 to January 31, 1997, and continued the 30 percent rating thereafter, under the provisions of 38 C.F.R. § 4.71a, Code 5055 (rating criteria for total knee replacement). As noted in the introduction to this decision, this appeal comes to the Board from an April 1997 RO decision, which denied the veteran's claim for a rating in excess of 30 percent for postoperative residuals of a lateral meniscectomy, arthrotomy, arthroscopic debridement, and status-post total knee replacement. The veteran apparently had about 18 knee operations prior to a left knee arthroplasty in December 1995. He was able to bear weight with the help of a cane at that time. The evidence prior to December 1995 does not have any significant probative weight in light of the arthroplasty. In November 1996, a VA examination of the veteran's left knee revealed that he could walk fairly well, but he could not completely flex or extend the knee. The veteran, who complained of swelling and pain with use, had range of motion from zero degrees to 70 degrees. A diagnosis of degenerative joint disease was rendered, with "moderate to severe" loss of range of motion and continued discomfort. (The initial 100 percent rating for the veteran's knee replacement was from December 4, 1995 to January 31, 1997.) According to a VA examination report from March 1997, the veteran had pain, occasional swelling, numbness laterally, but no noises in the knee on movement. The knee felt "a little loose." He had an occasional feeling that the knee would give away, but he did not fall. The veteran said that he could walk three miles on most days, with swelling about half of the time. A limp on the left side was noted. Physical examination of the knee showed that there was normal muscle strength. Mcmurray test was normal, and the cruciate and collateral ligaments were within normal limits. Sensory examination demonstrated a numb area about the lateral aspect, but there was no effusion. The veteran had flexion from zero to 95 degrees in the left knee. The latest medical evidence of record is a VA examination report of November 2000. The report shows that the veteran had a "slight limp on the left but no external rotation gait." He also had a slight external rotation noted when he was seated. There was slight tenderness laterally. Mcmurray test was again normal, internal and external torsion was negative and there was no effusion. Cruciate and collateral ligaments were normal except 1+ laxity. There was slight clicking palpated on active motion of the knee. Range of motion of the left knee extension to zero degrees and flexion to 110 degrees. The examiner said that functional impairment was "moderate to severe," with some loss of flexion by 25 to30 degrees. At a hearing in January 2001 before the undersigned member of the Board sitting in Phoenix, Arizona, the veteran testified as to the condition of his knee. The veteran reported that he had pain, stiffness, and give-away of the knee. He usually did not fall when the knee gave away. He said he took some pain killer for the knee, and that he sometimes wore a brace. He also indicated that the knee impairment had affected his occupational viability. Since the veteran underwent surgical knee replacement, his left knee disorder is rated under 38 C.F.R. § 4.71a, Code 5055. Under that code, the Prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. A 60 percent evaluation is warranted with chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, a knee replacement (prosthesis) should be rated by analogy to Codes 5256, 5261, and 5262, with a minimum 30 percent evaluation. 38 C.F.R. § 4.71a, Code 5055. In reviewing the relevant medical evidence, the Board notes that the VA examination in November 1996 showed that, while the veteran could not completely flex or extend the knee, he was able to walk fairly well. He complained of swelling and pain with use, and had range of motion from zero degrees to 70 degrees. A diagnosis of degenerative joint disease was rendered, with "moderate to severe" loss of range of motion and continued discomfort. (As noted above, the initial 100 percent rating for the veteran's knee replacement was from December 4, 1995 to January 31, 1997.) VA examination in March 1997, while noting the veteran's complaints of pain, occasional swelling, numbness, and an occasional feeling that the knee would give away, also noted that the veteran said that he could walk three miles on most days, with swelling about half of the time. Physical examination of the left knee at that time showed a limp but there was normal muscle strength, normal Mcmurray test, and the cruciate and collateral ligaments were within normal limits. Sensory examination demonstrated a numb area about the lateral aspect, but there was no effusion, and range of motion was from zero to 95 degrees. These medical findings are not, in the Board's judgment, consistent with more than moderate functional impairment or more than intermediate degrees of residual weakness, pain, and limitation of motion, within the meaning of 38 C.F.R. § 4.71a, code 5055. While the November 2000 VA examiner characterized the veteran's functional impairment as "moderate to severe," the clinical evaluation at that time showed that the veteran had a slight limp on the left but no external rotation gait, a slight external rotation noted when he was seated, and slight tenderness laterally. Mcmurray test was again normal, internal and external torsion was negative and there was no effusion. Cruciate and collateral ligaments were normal except for 1+ laxity. There was slight clicking palpated on active motion of the knee. Range of motion of the left knee extension to zero degrees and flexion to 110 degrees. Thus, the actual tests for impairment, to include instability and limitation of motion, showed no more than slight disability. Specifically, 1 + laxity is no more than slight, and limitation of knee motion from 0 to 110 degrees is no more than slight. See 38 C.F.R. § 4.71, Plate II and 38 C.F.R. § 4.71a, Codes 5260 and 5261. The Board finds that the relevant clinical findings in recent years, when considered in their totality, show that the veteran's service-connected postoperative residuals of a left lateral meniscectomy, arthrotomy, arthroscopic debridement, and total left knee replacement are symptomatic and productive of functional impairment, to include pain, weakness, slight instability, and limitation of flexion to 110 degrees, but the overall degree of disability is not consistent with severe painful motion or weakness of the left lower extremity, within the meaning of 38 C.F.R. § 4.71a, Code 5055. The Board has considered whether the veteran is entitled to a higher or separate rating under alternative diagnostic codes. As to any instability or subluxation of the knee, slight recurrent subluxation or instability is rated 10 percent. Moderate and severe recurrent subluxation or instability of a knee is rated 20 percent and 30 percent, respectively. The maximum rating for such disability is 30 percent. 38 C.F.R. § 4.71a, Code 5257. There is no medical evidence to show that the veteran's left knee disability is manifested by subluxation or more than slight instability. In any event, a 30 percent rating is the maximum rating allowed under Code 5257 and, as the symptoms in that code overlap with Code 5055, separate ratings for instability and residual weakness or pain is not warranted. (Residual limitation of motion and the question of whether a higher rating is warranted for instability and limitation of motion by rating the veteran's knee disability under Codes 5257, 5260, and 5261 rather than 5055 are addressed below.) That is, as the symptomatology for one condition (other impairment of knee, recurrent instability and subluxation, Code 5257) is duplicative of or overlapping with the symptomatology of the other condition (knee replacement, with symptoms that include pain and weakness, Code 5055), separate ratings are not warranted. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). As to the veteran's limitation of motion of the left knee, a 30 percent evaluation is warranted for limitation of extension of leg to 20 degrees. A 40 percent evaluation is warranted for limitation of extension of leg to 30 degrees, and a 50 percent evaluation is warranted for limitation of extension of leg to 45 degrees. See 38 C.F.R. § 4.71a, Code 5261. Flexion of a knee limited to 30 degrees is rated 20 percent. Flexion to 25 degrees, which is the maximum rating for limitation of flexion of the knee, is rated 30 percent. See 38 C.F.R. § 4.71a, Code 5260. There is no medical evidence to show that the veteran's knee disability is productive of any limitation of extension or limitation of flexion of more than 70 degrees, and the most recent examinations (March 1997, November 2000) showed flexion to 95 and 110 degrees, respectively. The Board is cognizant of two opinions from the Office of General Counsel (GC) pertinent to claims of entitlement to higher evaluations for knee disabilities. These GC opinions reflect that a veteran who has x-ray evidence of arthritis and instability of the knee may be evaluated separately under Diagnostic Codes 5003 and 5257 provided additional disability is shown. VAOPGCPREC 23-97 (July 1, 1997) (23-97); VAOGCPREC 9-98 (August 14, 1998) (9-98). Additional disability is shown when a veteran meets the criteria for a noncompensable evaluation under either Code 5260 or Code 5261, which include flexion limited to 60 degrees or extension limited to 5 degrees, or when there is painful motion such that it adds to the actual limitation of motion shown under Code 5260 or Code 5261. 9-98 at paragraphs 1, 6. A separate evaluation may also be granted under Code 5003 and 38 C.F.R. § 4.59, when a veteran technically has full range of motion that is inhibited by pain. 9-98 at paragraphs 4, 6; see also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). However, in light of the medical evidence showing no more than slight instability of the left knee, normal extension, and flexion limited to no more than 70 degrees, with the most recent examinations showing flexion to 95 and 110 degrees, a higher rating by alternatively evaluating the veteran's knee disability under 38 C.F.R. § 4.71a, Codes 5257, 5260 and 5261 is not warranted. Further, in evaluating the veteran's left knee condition, the Board has considered all of the applicable regulations, including 38 C.F.R. §§ 4.40, 4.45, 4.59 (2000), and DeLuca v. Brown, 8 Vet. App. 202 (1995). In looking at the evidence, the Board finds that an additional rating or higher rating under the cited law and regulations is not appropriate. The Board has already described the level of pain and weakness in the right knee that warrants a 30 percent rating under 38 C.F.R. § 4.71a, Code 5055. As the Board has found that these symptoms, which are definitely present but not severe, have been taken into account in the rating under Code 5055. Furthermore, the Board finds that recent examinations, while showing some residual weakness and daily pain and aching, is consistent with the 30 percent rating under DC 5055. The Board does not find that an additional rating is warranted for functional loss due to pain and other factors such as absence of joints, or increased joint movement or weakness, under §§ 4.40 and 4.45. Given the ranges of motion that have been reported, most recently from 0 to 110 degrees, even allowing for some additional range of motion loss due to pain or other symptomatology would not result in ratings in excess of 20 percent under either Code 5260 or 5261. There is no objective evidence to show that pain, flare-ups of pain, weakness, fatigue, incoordination, or any other symptom results in additional limitation of function to a degree that would support a higher rating under the cited legal authority. Simply put, alternatively rating the veteran's left knee disability as slight instability, (10 percent under code 5257) and for the limitation of motion that has been shown (no more than 20 percent disabling under Code 5260 or 5261 with consideration of 38 C.F.R. §§ 4.40, 4.45, 4.59 (2000), and DeLuca v. Brown, 8 Vet. App. 202 (1995)), does not result in a rating in excess of 30 percent. The potential application of various provisions of Title 38 of the Code of Federal Regulations (2000) have been considered whether or not they were raised by the veteran as required by the Court's holding in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has considered whether an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) is warranted for the veteran's disability of the left knee. In the instant case, however, there has been no showing that the disability under consideration has caused marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), necessitated frequent periods of hospitalization, or otherwise renders impracticable the application of the regular schedular standards. Under these circumstances, the Board determines that the criteria for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237, 239 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, the Board will not apply this doctrine because the preponderance of the evidence is against the veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). ORDER Entitlement to an evaluation in excess of 30 percent for postoperative residuals of a lateral meniscectomy, arthrotomy, arthroscopic debridement, and status-post total left knee replacement is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals