BVA9500419 DOCKET NO. 93-06 466 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES Entitlement to an increased evaluation for a right knee disorder, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bernard T. DoMinh, Associate Counsel INTRODUCTION The veteran served on active duty from June 1969 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim for an increased evaluation for a right knee disorder, currently rated as 10 percent disabling. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his right knee disorder is productive of the requisite degree of disability to warrant a higher disability rating than the current 10 percent evaluation. He further contends that the RO improperly determined, in its recent rating decision, that his right knee disorder was 10 percent disabling when he entered service, warranting a deduction from his disability rating. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 evaluation, to 20 percent, for a service-connected right knee disorder. FINDINGS OF FACT 1. Service connection is in effect for a right knee disability, on the basis that it preexisted service but was aggravated therein. 2. At the time of entrance into service, the right knee disability was asymptomatic, and no compensable level of disability then existed. 3. The right knee disability currently produces moderate impairment. CONCLUSION OF LAW No deduction is to be taken for the preservice level of the service-connected right knee disorder, and that disorder is now 20 percent disabling. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.322, 4.71a, Codes 5257, 5258 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran's service medical records show that his lower extremities were clinically evaluated as normal during a March 1969 pre-induction physical examination. He reported that he had once fractured a kneecap, but the reviewing doctor stated that this old injury was healed. He was rated acceptable for military service and inducted into the Army in June 1969. Medical records dated in August 1969 show that the veteran complained of having pain over his right patella. He reported that he had an old fracture of his right patella. He had full range of motion of the knee joint without pain. Physical examination of that knee was reportedly negative. He was also evaluated for left knee symptoms. X-rays of both knees were negative. In September 1969, the veteran complained of having a bilateral knee problem, right more painful than left, and reported that he collapsed while doing physical training the day before. Knee X- rays were negative. He was referred to the orthopedic clinic for examination. During a September 1969 orthopedic examination, the veteran reported having onset of bilateral knee pain during his fifth week of basic training (7 weeks prior to this examination) which was persistent and increased with exercise. He stated that he broke his right kneecap when he was in high school. X-rays showed deformity of the right patella with irregularity of the articular surface. Examination showed marked grating at the superior pole of the right patella on the lateral femoral condyle with knee motion. The area was very tender. Mild tenderness was noted on the right medial tibial plateau. No quadriceps atrophy, knee locking or swelling was observed. The impression was old fracture of the right patella with residual deformity causing irregularity of the articular surface and interfering with function. It was recommended that he be discharged from service due to that condition. During a September 1969 discharge examination, the veteran reported his history of broken right kneecap and knee problems when performing any activity. The examination report shows that discharge from service was recommended per the September 1969 orthopedic examination, secondary to his old right patella fracture with residual deformity. Examination of his lower extremities yielded identical findings as the prior orthopedic examination discussed above. The veteran was medically discharged from active duty in October 1969, on the basis of the right knee condition which was said to have existed prior to service. He filed a claim with VA for service connection for his knee disorder that same month. Medical records from Evanston Hospital, dated in June 1970, show that the veteran was diagnosed with an old fracture of the right patella with severe chondromalacia, degenerative arthritis of the medial femoral condyle, and osteophyte formation on the patella. Surgery was performed on the right knee, which involved patella debridement and an arthrotomy. In a medical statement dated in September 1970, Howard J. Sweeney, M.D., reported that the veteran had an arthrotomy performed on his right knee in June 1970. The right patella was debrided to excise a protuberant area on the upper pole of the patella that had occurred from a previous fracture. The upper pole of the patella was excised. Dr. Sweeney stated that the veteran had considerable chondromalacia of the patella and medial femoral condyle of the femur. During a September 1970 VA examination, the veteran reported that the right knee was first injured in high school but he believed it was aggravated by service. He reported having grating of the knee joint on motion, pain on the kneecap on extension of the leg, and tenderness. Physical examination showed that he had a parapatellar curved incision scar on the anteromedial aspect of his right knee measuring approximately 10 centimeters in length which was well healed. Slight right thigh muscle atrophy was noted. He had flexion to 135 degrees on the left knee and 133 degrees on the right. There was no evidence of swelling of the knee joints or fluid in the joints and his popliteal spaces were symmetrical. The medial and collateral ligaments appeared intact. Drawer sign was symmetrical and considered to be within normal limits. X-rays of the right knee showed deformity of the anterosuperior aspect of the patella, associated with cortical irregularity and increased bony sclerosis which was probably the result of old trauma, and evidence of early marginal spurring along the articular surface of the femur and tibia was also revealed. X-rays of the left knee were negative. The diagnosis was ancient fracture of the small segment of the upper pole of the right patella, treated surgically in June 1970 by partial excision, with subjective complaints. In a November 1970 statement, the veteran reported that, while he was in high school, he fractured his right kneecap in October 1962, but thereafter played soccer in college for 4 years and was involved in collegiate intramural sports and other physical activities. He stated that, throughout this time, his right knee was completely asymptomatic. He stated that he first began to experience knee symptoms during service and asserted that his old right kneecap fracture was aggravated by the rigors of military physical training. A December 1970 letter from the veteran's college soccer coach noted the veteran played on the school team from 1964 to 1968 without any apparent physical handicap. In a January 1971 decision, the Board granted service connection for a right knee disorder based on aggravation by service of a preexisting condition. In a February 1971 decision, the RO, implementing the Board decision, established service connection, by aggravation, for the post-operative right knee disability. The RO assigned a 10 percent disability rating, taking no deduction for the preservice level of disability. In a September 1972 statement from William U. Cavallaro, M.D., it was reported that the veteran had been treated for a fractured right patella in 1962. Subsequent examination revealed the development of chondromalacia of the patella, and X-rays dated in November 1969 revealed irregular contouring of the cartilaginous surface of the right patella with spur formation present on its upper pole. During a December 1972 VA examination, the veteran reported that his right knee felt improved. X-rays revealed irregularity and deformation of the superior border of the right patella with sclerotic changes which were probably residuals of a previous trauma or surgical intervention. Following physical examination, the diagnosis was history of chondromalacia with well-healed post-operative scar, mild to moderate crepitus and atrophy of the right lower extremity, reported as periodically symptomatic. A December 1972 RO decision confirmed the 10 percent disability rating assigned for the right knee disorder. No deduction was made for the preservice level of disability. VA medical records show that during an outpatient treatment session in December 1989, the veteran complained of having chronic right knee pain when climbing up and down stairs. Examination showed atrophy of the musculature in the right leg, which was assessed to be secondary to his prior history of knee injury. The veteran failed to report for a later scheduled VA examination, and an October 1991 RO decision confirmed the prior 10 percent rating for the right knee condition. The veteran subsequently stated that he had not been notified of the VA examination and requested that he be examined. During an August 1992 VA examination, the veteran complained of having pain and occasional locking in his right knee. He reported the preservice, service, and post-service history of his right knee condition. He said that in 1989 the knee symptoms became much worse, and he had considerable problems walking up and down stairs since that time. He reported that he would experience locking of his right knee joint several times each year, though he stated that he had not missed any work due to this disability. Examination of the right knee showed moderate effusion of the subpatellar bursa and the area lateral and medial to the patella. An approximately 1/2-inch diameter Baker's cyst was located in the popliteal space. The examiner reported that grind testing on the patella produced considerable pain. No deformity, subluxation, or lateral instability was noted. He had a normal gait and an erect carriage. A 5-inch postoperative scar from the 1970 surgery was located on the medial edge of the right patella, with another small, 1/2-inch diameter scar located on the medial midportion of the same patella. The scars were well healed, non-painful and not affixed to any underlying tissue. Atrophy of the right quadriceps muscle was noted. Range of motion of his right knee was from zero degrees to 138 degrees, with pain reported to begin at about 125 degrees. The left knee range of motion was from zero degrees to 141 degrees. X-rays of the right knee were negative, with no bone or joint abnormalities, no evidence of acute or recent fracture or dislocation; the articular cortices of the knee joint were smooth and regular and there was no evidence of unusual soft tissue calcification. The diagnoses were chondromalacia and chronic pain, right knee; and Baker's cyst, right knee, small and asymptomatic. In a December 1992 decision, the RO found that an increased evaluation was not warranted for the veteran's right knee disorder. The decision shows that the RO found his knee disorder was moderately disabling, and the overall condition was deemed 20 percent disabling. However, the RO found that it did not consider the provisions of 38 C.F.R. § 3.322 in its February 1971 rating decision, and that under that regulation a 10 percent deduction should be taken for the preservice level of disability. Thus, the RO concluded that the veteran's right knee disability should continue to be rated 10 percent (i.e., 20 percent for current level of disability minus 10 percent for preservice level of disability). II. Analysis The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107, in that it is not inherently implausible. Relevant evidence has been properly developed, and no further assistance to the veteran is required to comply with the duty to assist. Id. 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. Slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. Moderate impairment warrants a 20 percent evaluation. A 30 percent evaluation requires severe impairment. 38 C.F.R. § 4.71a, Code 5257. Dislocation of the semilunar cartilage of either knee with frequent episodes of "locking," pain and effusion into the joint warrants a 20 percent evaluation. Code 5258. In cases involving aggravation of a preservice disability by active service, the rating 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. 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). There is no evidence from recent years of any significant problems with the postoperative right knee disorder, until 1989 when the veteran was seen for right knee pain on climbing stairs, and some right leg atrophy was noted. The August 1992 VA examination shows that the veteran's right knee disorder was manifested by occasional locking of the joint, moderate effusion, muscular atrophy of the right thigh, pain on pressure to the patella, and pain on extreme flexion. Extension was full (zero degrees), and flexion was slightly diminished (the knee could be flexed to 138 degrees but with pain at about 125 degrees). There was no subluxation or lateral instability. Also noted were well- healed, non-painful surgical scars. Putting aside, for the moment, the question of a possible deduction for the preservice level of disability, the Board agrees with the RO that the overall right knee impairment is 20 percent. There is no clinical evidence of recurrent subluxation or lateral instability, but the aggregate symptoms approach a moderate knee impairment under analogous rating Code 5257. 38 C.F.R. § 4.20. The veteran does not have a dislocated cartilage, but his overall symptoms also approach the criteria for a 20 percent rating under analogous Code 5258. If the right knee disability were strictly rated on the basis of limitation of motion, it would be rated zero percent (Codes 5260, 5261), although the effects of pain might justify a 10 percent rating (38 C.F.R. §§ 4.40, 4.59). While the Board finds that the current level of disability is 20 percent, it is also clear that the veteran does not have a severe right knee impairment as required for a 30 percent rating under Code 5257. The Board has considered the question of whether a deduction from the 20 percent rating is warranted under 38 C.F.R. § 3.322 because of the preservice level of disability. After reviewing the pertinent evidence, the Board finds that it indicates that the veteran's old right kneecap fracture was essentially asymptomatic and did not produce any ascertainable degree of disability at the time of his entry into service. During the veteran's March 1969 pre-induction examination, he reported the preservice injury but denied having any current problems. The examination report shows that his old right kneecap fracture was healed and that his lower extremities were evaluated as normal. The veteran's statements, that his right knee condition was essentially asymptomatic before service, appear credible, and are corroborated by a statement from his preservice college soccer coach. The veteran entered active duty in June 1969 and was able to complete a number of weeks of basic training before right knee symptoms first required medical attention, in August 1969, and even at that time findings were minimal. More significant symptoms developed thereafter. These factors lead the Board to conclude that the preservice right knee condition was essentially asymptomatic when the veteran entered service, and there was then no ascertainable compensable disability. Therefore, there is to be no deduction for the preservice level of disability. For these reasons the Board holds that the veteran is entitled to an increased rating, to 20 percent, for the service-connected right knee disability. ORDER An increased rating, to 20 percent, for the service-connected right knee disorder is granted. L. W. TOBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (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 1991), 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 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.