BVA9508096 DOCKET NO. 93-12 213 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an increased rating for postoperative residuals of a ligamentous injury to the left knee, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Constance C. Hickey, Associate Counsel INTRODUCTION The veteran had active duty for training from June 1984 to December 1984 and from October 1988 to November 1988. This appeal to the Board of Veterans' Appeals (Board) arises from the December 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico which confirmed and continued the 20 percent evaluation for postoperative residuals of a ligamentous injury to the left knee. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran essentially that he is entitled to an increased evaluation for postoperative residuals of a ligamentous injury to the left knee. The veteran asserts that he has sustained calcification of the left posterior cruciate ligament, and that left knee limitation supports an increased 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 folder. Based on our 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 for an increased evaluation for postoperative residuals of a ligamentous injury to the left knee. FINDING OF FACT Postoperative residuals of a ligamentous injury to the left knee are manifested by moderate stiffness, early degenerative joint disease, decreased range of motion of 120 degrees, crepitation of 1 plus on motion, mild tenderness on palpitation, narrowing of the medial meniscus, some signs of anterior cruciate laxity which is not sufficient to warrant surgical intervention, and calcification in the area of the medial collateral ligament that is compatible with Pelligrini-Stieda disease, and was found to be diminished on examination in July 1991. CONCLUSION OF LAW Postoperative residuals of a ligamentous injury to the left knee are not more than 20 percent disabling according to the schedular and extraschedular criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.10, 4.40, 4.45, 4.59 and Part 4, Codes 5257, 5260 and 5261 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded; that is, the claim is plausible. Additionally, there is no indication that there are unobtained records which are available and which would aid a decision in this case. Accordingly, we conclude that the record is complete and that there is no further duty to assist the veteran in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). Factual Background Service medical records indicate that the veteran sustained avulsion of the anterior cruciate ligament and a complete tear of the medial collateral ligament of the left knee during a parachute jump in November 1988. He subsequently underwent arthroscopic surgery to repair the anterior cruciate and medial collateral ligaments, followed by application of a full leg cast for 6 weeks, and the use of a long leg hinged brace. At the time of his VA compensation examination in March 1989 the veteran reported daily pain, constant swelling and severely limited range of motion. Examination disclosed a swollen knee, slightly painful to palpation, with moderately severe stiffness. Range of motion was 100 degrees. The examiner noted that the veteran walked with a slight limp and required a full length knee brace for support. X-rays revealed calcification involving the region of the medial collateral ligament and extending to the superior aspect of the medial femoral condyle, which was compatible with Pelligrini-Stieda disease. Diagnosis was stable status post surgical repair of left anterior cruciate ligament avulsion and left medial collateral ligament complex capsule rupture, with recurrent arthralgias. VA and private treatment records dated June through December 1990, indicate that the veteran continued to report pain and difficulty in moving his knee. From October through December 1990, he underwent physical therapy, designed to increase range of motion. A private treatment report in October 1990 noted the left knee lacked 8 degrees of full extension and there was approximately 90 degrees of flexion. There was half an inch difference in quadriceps girth when compared to the right and negligible left knee pain even with terminal stretching into flexion. The report of his physical therapist states that the veteran chose to discontinue therapy because of his frustration with slow gain in range of motion and the painfulness of therapy. The veteran reportedly hoped that his range of motion could be increased through arthroscopic surgery. At the time of his June 1991 VA examination the veteran reported daily pain, which was unrelated to activity, and increased by cold or damp weather. Examination revealed moderated stiffness, with 120 degrees range of motion. Crepitations on left knee flexion and extension were described as 1 plus. The examiner noted that there was no laxity of the joint or atrophy of left quadriceps muscles. There was mild tenderness to palpation of the anterior aspect of the joint. July 1991 VA X-rays revealed narrowing of the medial meniscus, a diminished degree of degenerative calcification in the area of the medial collateral ligament, compatible with Pelligrini-Stieda disease. Diagnoses included status post surgical repair of tears of the left knee anterior cruciate and medial collateral ligaments, degenerative disease, and recurrent arthralgias of the left knee. VA outpatient records for September 1991 indicate that the veteran had a range of motion of 10 to 90 degrees. He agreed to perform exercises at home but requested not to go to physical therapy. The VA examiner noted that the veteran had recently been seen at a VA Medical Center (VAMC) where doctors advised him that arthroscopic surgery would not be of benefit to him. In August 1992 VA outpatient progress notes an orthopedic consultant noted his opinions that the veteran had early degenerative disease and some signs of anterior cruciate ligament laxity, which were not sufficient to warrant surgical intervention. The record reflects that the veteran continued to decline physical therapy. Medication and a Neoprene "knee sleeve" were prescribed to alleviate symptoms. Entitlement to Increased Evaluation for Postoperative Residuals of a Ligamentous Injury to the Left Knee In general, disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practically be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such evaluations involve considerations of the level of impairment of the veteran's ability to engage in ordinary activities, to include employment. 38 C.F.R. § 4.10. Although regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole history, 38 C.F.R. § 4.1, 4.2, the present level of disability is of primary concern. Francisco v. Brown, No. 93-76, slip. op. at 5, (U.S. Vet. App. Sept. 27, 1994). The Board notes that the veteran's level of disability has remained relatively stable since the initial assignment of a 20 percent evaluation in March 1989, with some indications of improvement. The reported range of knee motion has varied on some examinations, but limitation of extension of more than 10 degrees has not been shown in the medical evidence. Swelling which was present in March 1989 was not noted in 1991. The veteran was required to use a long leg hinged knee brace for support at the time of his initial evaluation, as compared to a "knee sleeve" brace in 1991. The Board notes that the evidence shows the presence of calcification and the diagnoses have included degenerative disease of the left knee. These finding are evaluated on the basis of limitation of motion. The veteran's disability is currently evaluated under the provisions of Diagnostic Code 5257 pertaining to impairment of the knee, which provides a 20 percent disability rating where there is moderate recurrent subluxation or lateral instability. The criteria for a 30 percent evaluation, the next higher level of rating, requires evidence of severe recurrent subluxation or lateral instability. August 1992 progress notes reflect some signs of anterior cruciate laxity which are not sufficient to warrant surgical intervention. In accordance with 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.7, 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 required for that rating. Otherwise the lower rating will be assigned. The Board finds that the evidence of record does not warrant a finding of severe recurrent subluxation or lateral instability to support a rating of 30 percent under Diagnostic Code 5257. In evaluating the veteran's claim, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The veteran's disability could arguably be rated under the provisions of Diagnostic Codes 5260, pertaining to limitation of flexion of the leg, and Code 5261 pertaining to limitation of extension of the leg. However, the record contains no evidence that flexion is, or at anytime was limited to 15 degrees or less, as would be required for a rating greater than 20 percent under Code 5260. Flexion was most recently specified as 90 degrees in September 1991. Accordingly, rating under Code 5260 would not result in a greater evaluation of the veteran's knee disability. Similarly, the evidence of record does not warrant a finding that extension is, or ever was limited to 20 degrees or above, as required for a rating greater than 20 percent, under Code 5261. Extension was most recently specified as 10 degrees in September 1991, a circumstance which warrants only a 10 percent rating under Code 5261. Rating under that diagnostic code also would not be advantageous to the veteran. The veteran's remarks in his appeal and in his September 1991 statement in support of the claim, and again in a letter dated April 1993, reflect his confusion concerning the question of whether the limitation in his left knee range of motion warrants a separate rating under Diagnostic Code 5261, in addition to the existing 20 percent rating under Code 5257. However, evaluation of the same disability under multiple diagnoses is not contemplated by the regulatory provisions, which state that such "pyramiding" is to be avoided. 38 C.F.R. § 4.14(1994). Regulations mandating consideration of pain in rating a disability have also been taken into account in the rating currently assigned for left knee impairment. It is apparent, then, that the veteran is now in receipt of the highest schedular evaluation currently available for his left knee disability. In exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the veteran's disability level. There is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to this disorder, that would take the veteran's case outside the norm so as to warrant an extraschedular rating. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, the preponderance of the evidence is against the veteran’s claim for an increased evaluation of postoperative residuals of a ligamentous injury to the left knee. Therefore, 38 U.S.C.A. § 5107(b) is not for application. Accordingly, the Board concludes that an increased evaluation for residuals of a ligamentous injury to the left knee is not warranted. ORDER Increased evaluation for postoperative residuals of a ligamentous injury to the left knee is denied. S. L. COHN 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.