Citation NR: 9623640 Decision Date: 08/22/96 Archive Date: 08/30/96 DOCKET NO. 94-47 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for bilateral hydroceles. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. 5. Entitlement to an increased evaluation for strain of the left knee, with slight limitation of motion and spurring of the patellar margins, evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from January 1973 to January 1979. This appeal arises from a rating decision in February 1994 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board of Veterans' Appeals (the Board) notes that a rating decision in January 1980 denied entitlement to service connection for hearing loss. The veteran was duly notified of the decision, but a timely appeal was not perfected. In 1993 and thereafter he submitted additional evidence in an attempt to reopen the claim; the RO found that the additional evidence was not new and material, and the current appeal on that issue ensued. The Board also notes that at a personal hearing in February 1995 the veteran withdrew his appeal on the issue of entitlement to an increased rating for tinnitus. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that a left knee disorder is more severe than is reflected by the currently assigned evaluation. He states that the left knee is frequently painful. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104(a) (West Supp. 1995), 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 preponderance of the evidence is against the veteran's claim of entitlement to an increased rating for a left knee disorder. FINDING OF FACT A left knee disorder is primarily manifested by subjective complaints of pain, without limitation of motion, deformity, swelling, redness, heat, effusion, weakness or instability; the disability is productive of no more than slight impairment. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 10 percent for strain of the left knee, with slight limitation of motion and spurring of the patellar margins, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.20, 4.71a, Code 5257 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). Service medical records disclose that in February 1973 during basic training the veteran complained of tightness and swelling of the left knee after prolonged running. The impression was pulled tendons. In October 1973 he complained of left knee pain after prolonged activity. X-rays were negative. The impression was left knee pain probably secondary to ligamentous strain. In February 1974 he complained of intermittent aching of the left knee after exercise; an examination was unremarkable. The impression was left knee pain of questionable etiology. At a VA examination in June 1979 the veteran was 5 feet 6 inches tall and weighed 190 pounds. He complained of pain in the popliteal area of the left knee. On examination the left knee was normal in appearance; there was no swelling or deformity. The left knee was stable and nontender. Drawer sign and McMurray's sign were negative. X-rays of the left knee showed minimal spurring of the superior pole of the anterior margin of the patella. The diagnosis was chronic strain of the left knee with minimal spurring of the patellar margins. At a VA facility in July 1993 the veteran complained of swelling of the knees off and on for 20 years. On examination of the knees there was no swelling or erythema; the knee joints were stable; there was some crepitus, bilaterally. The diagnostic impressions included probable internal derangement of the knees. In a statement received in August 1993 the veteran said that: When he stood for more than 10 minutes, his knees would begin to swell; when he walked, his knees popped and occasionally dislocated; his knees could not support his weight. At a VA orthopedic clinic in May 1994 the veteran complained of intermittent pain and swelling of the knees. On examination both knees were stable; there was crepitation on rotation. At a personal hearing in February 1995 the veteran testified that going up or down stairs or prolonged walking caused swelling and soreness of the left knee, requiring him to wear a brace or use a support, and that frequently the joint made a popping sound. He reported pain in the front of the left knee below the kneecap, taking Motrin for pain, and elevating the knee in the evening. He claimed that he was unable to stoop or bend without a problem. Because he could not depress the clutch, he reportedly had to leave a job as a truckdriver. A VA doctor had recommended surgery to remove calcium from the left knee joint. At a VA orthopedic examination in March 1995, the veteran stated that during basic training he had strained both knees. He reported occasionally wearing a large brace on the left knee, and he complained of intermittent sharp pain in the left knee, associated with swelling, tenderness, and heat. He stated that his knees were stiff for an hour early in the morning, and that bending, kneeling, crouching and prolonged inactivity aggravated the pain. He described that sometimes he heard popping and cracking, particularly on flexion. On examination the veteran had a normal gait and station. He could perform a satisfactory heel and toe walk. He was able to squat and arise. There was no swelling, deformity, redness, heat, effusion, or weakness. There was medial joint line tenderness, bilaterally. There was no subluxation or lateral instability of the left knee. Range of motion was flexion to 120 degrees and extension to 0 degrees. Diagnoses included: status post strain of both knees, chondromalacia suspected; and degenerative joint disease of the knees. 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. Separate diagnostic codes identify the various disabilities. Where entitlement to service connection has already been established, and an increase in the disability rating is the issue, the present level of the disability is the primary concern. Francisco v. Brown, 7 Vet.App. 55 (1994). When an unlisted disorder is encountered it is permissible to rate the disorder under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20. Diagnostic Code 5257 provides that slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment. In the veteran's case, at VA evaluations in 1993, 1994, and 1995, the left knee was stable. Although the veteran has stated that his left knee has dislocated, subluxation has not been objectively confirmed. Furthermore, at the VA examination in March 1995, flexion was to 120 degrees, extension was to 0 degrees, and no evidence of deformity, swelling, redness, heat, effusion, or weakness of the left knee was found. Only some medial joint line tenderness was noted. Considering the paucity of objective clinical findings with regard to the left knee, the Board finds that the veteran's left knee disorder has imposed no more than a slight impairment, and the currently assigned 10 percent rating is appropriate. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, Code 5257. In reaching this decision the Board considered the fact that the veteran’s left knee disorder is manifested by radiological evidence of spurring. Accordingly, the Board considered whether an increased evaluation is warranted under the Diagnostic Code for degenerative arthritis. In this respect, under Diagnostic Code 5003 degenerative arthritis of the knee, manifested by painful motion, is rated under the Diagnostic Codes for limitation of motion of the knee. Under Diagnostic Code 5260 flexion limited to 30 degrees warrants a 20 percent evaluation, and under Diagnostic Code 5261 extension limited to 15 degrees also warrants a 20 percent evaluation. As noted above, however, the veteran has full extension and he shows flexion to 120 degrees. Hence, an increased evaluation for painful motion due to arthritis is not warranted. The Board also considered the provisions of 38 C.F.R. § 4.40, however, the rating for limitation of motion due to arthritis includes consideration of pain, see 38 C.F.R. § 4.71a, Diagnostic Code 5003, and hence, assigning an evaluation for pain under 38 C.F.R. § 4.40 as interpreted in DeLuca v. Brown, 8 Vet.App. 202 (1995), would violate the principle against pyramiding. 38 C.F.R. § 4.14 (1995). The provisions of 38 C.F.R. § 3.321(b)(1) were also considered, however, the veteran’s knee disorder is not reflective of an unusual or exceptional disability picture, it is not shown to markedly interfere with employment, and it has not required frequent inpatient care as to render impractical the application of regular schedular standards thereby precluding the assignment of an increased evaluation on an extraschedular basis. Finally in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER An increased evaluation for strain of the left knee, with slight limitation of motion and spurring of the patellar margins, is denied. REMAND The veteran has asserted that he incurred disabilities of the right knee and back in service or, in the alternative, that such disabilities are secondary to his service-connected left knee disorder. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (1995). The United States Court of Veterans Appeals (the Court) has held that secondary service connection may also be granted for the degree of aggravation to a nonservice-connected disorder which is proximately due to or the result of a service-connected disorder. Allen v. Brown, 7 Vet.App. 439, 448 (1995). In this case, the rating decision denying secondary service connection for right knee and back disorders was before the Court's decision in Allen. The Board, therefore, finds that, prior to a final disposition of the appeal on those issues, an opinion should be obtained from a specialist in orthopedics as to the relationship, if any, between the veteran's service-connected left knee disorder and disabilities of the right knee and back. Hence, the claims should be readjudicated with consideration of the possible applicability of Allen. With regard to the claim of entitlement to service connection for hydroceles, service medical records disclose that in October 1973 the veteran underwent a vasectomy. Available service medical records are negative for the presence of a hydrocele. Records of Kaiser Permanente show that in 1992 the veteran underwent a left hydrocelectomy and at that time gave a history of having undergone a right hydrocelectomy in service in 1978. At a personal hearing in February 1995 the veteran testified that, after he had a vasectomy in service in 1973, he had soreness and tenderness "in that area of my body" and that in 1978 at George Air Force Base, California, a hydrocele repair on the right side was performed. The veteran insists that he underwent a right hydrocelectomy at a service department facility in 1978, but the service medical records in his claims file do not contain entries concerning such a procedure. The Board finds that an attempt should be made to obtain any additional service medical records for 1978 which may exist. With regard to the veteran's attempt to reopen a claim of entitlement to service connection for bilateral hearing loss, the Board has carefully reviewed all evidence of record on this issue, including the service medical records in a VA audiological examination in June 1979. In view of the inconsistency between results of audiometric testing during service, which showed significant bilateral hearing loss, and the VA audiological examination in June 1979, which was interpreted as showing auditory acuity within normal limits in the conversational voice range, the Board finds that the veteran should be permitted an opportunity to undergo a VA audiological examination to determine if he currently has hearing loss disability, as defined by 38 C.F.R. § 3.385. This case is REMANDED to the RO for the following: 1. The RO should contact George Air Force Base, California, the National Personnel Records Center, and any other depository to which the veteran's service medical records may have been retired and request that they conduct a search for copies of any additional service medical records which may be available and, in particular, any records of treatment of the veteran at George Air Force Base in 1978. 2. The RO should schedule the veteran for VA orthopedic and audiological examinations. The purpose of these examinations is to determine the nature and extent of any disability present, and, with respect to the back and right knee claims, to ascertain the relationship between any diagnosed disorder and either the veteran’s active duty service or his service connected left knee disorder. It is imperative that each examiner actually review the veteran's entire claims file, including service medical records, prior to conducting the examinations. The examinations are to be conducted in accordance with the VA PHYSICIAN'S GUIDE FOR DISABILITY EVALUATION EXAMINATIONS, all indicated studies must be conducted, and the examination reports must include a detailed account of all pathology found to be present. The examining audiologist must provide an opinion in writing as to whether it is at least as likely as not that the veteran’s hearing loss is related to his active duty service. The examining orthopedist must offer his/her professional opinion, with supporting written reasons, as to whether there exists an etiological relationship between the veteran’s left knee disorder and either his back or right knee disabilities. If an etiological relationship does not exist, the examiner must then offer an opinion as to whether the service-connected left knee led to an increase in severity of either the veteran's back or right knee disorders. Any opinion provided must be accompanied by a complete rationale. The examination report should be typed. 3. The RO should then review the record to ensure that all of the foregoing development has been completed. In particular the RO should review the examination reports to ensure that all requested examinations and opinions, with complete written rationales, have been provided. Any examination report which is inadequate must be returned at once for appropriate action. Following completion of these actions, the RO should review the evidence and determine whether the veteran's claims may now be granted. If the decision remains adverse to the veteran, he and his representative should be provided with an appropriate supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. The purposes of this REMAND are to assist the veteran in the development of facts pertinent to his claim and to apply the Court's holding in Allen. By this REMAND the Board intimates no opinion, legal or factual, as to the ultimate disposition of the appeal. No action is required of the veteran until he receives further notice. DEREK R. BROWN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 Supp. 1995), 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1995). - 2 -