BVA9503600 DOCKET NO. 93-12 138 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to restoration of a 100 percent schedular evaluation for postoperative residuals of a right knee injury, including a total right knee replacement. 2. Entitlement to an increased rating for postoperative residuals of a right knee injury, including a total right knee replacement, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran had active service from June 1944 to January 1946. This appeal is taken from a Regional Office (RO) determination in November 1991 which assigned an increased schedular 100 percent evaluation for the disability at issue and scheduled reduction of the evaluation to 30 percent effective from April 1, 1992. A rating decision in March 1992 confirmed the reduction to 30 percent. In her substantive appeal, the veteran claimed entitlement to service connection for a right foot disability as secondarily due to the service-connected right knee disability. This issue has not been adjudicated by the RO, and is not inextricably intertwined with the issue on appeal. As such, it is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the clinical status of her right knee disability did not warrant a reduction from the 100 percent schedular evaluation, and that the disability continues to be more disabling than the current rating reflects. 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(s). 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 claims for entitlement to restoration of a 100 percent schedular evaluation, and entitlement to an increased evaluation, for postoperative residuals of a right knee disability, including a total knee replacement. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the issues on appeal has been obtained. 2. Improvement of the postoperative residuals of a right knee disability, including a total knee replacement, had been clinically demonstrated prior to the effective date of the reduction from a 100 percent schedular evaluation. 3. The postoperative residuals of a right knee disability, including a total right knee replacement, are currently manifested primarily by limitation of motion and a complaint of associated pain. 4. Neither an exceptional nor unusual disability picture has been demonstrated so as to render the regular schedular criteria inapplicable. CONCLUSIONS OF LAW 1. Restoration of a 100 percent schedular evaluation for postoperative residuals of a right knee disability, including a total knee replacement, is not warranted. 38 U.S.C.A. § § 1155, 5107 (West 1991); 38 C.F.R. § § 3.321, 3.344, 4.71a, Diagnostic Codes 5055, 5256, 5260, 5261, and 5262 (1993). 2. The criteria for an evaluation in excess of 30 percent for postoperative residuals of a right knee disability, including a total knee replacement, have not been met. 38 U.S.C.A. § § 1155, 5107 (West 1991); 38 C.F.R. § § 3.321, 4.71a, Diagnostic Codes 5055, 5256, 5260, 5261, and 5262 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). He has presented claims that are plausible. The Board is satisfied that all relevant facts have been properly developed. There is no indication of outstanding additional evidence. 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. Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). Although the VA must consider the entire record, the most pertinent evidence is those documents created in proximity to the recent claims. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 4.1 (1993). Initially, the Board must decide whether the veteran is entitled to restoration of a 100 percent schedular evaluation before proceeding to the issue of entitlement to an increased evaluation for a right knee disability, currently evaluated as 30 percent disabling. I. RESTORATION OF A 100 PERCENT EVALUATION The United States Court of Veterans Appeals has held that a reduced rating must comply with the provisions of 38 C.F.R. § 3.344 (1993) or the reduction may not be valid. Further, as stated in Bentley v. Derwinski, 1 Vet.App. 28 (1990), after-the- fact justification cannot resurrect a flawed rating, one which was arrived at in derogation of the regulations promulgated by the Secretary. The Board finds that the RO did not exceed its discretionary authority inasmuch as its reduction action was in compliance with the provisions of 38 C.F.R. § 3.344. Dofflemyer v. Derwinski, 2 Vet.App. 277, 282 (1992). The Court has also noted that the rating schedule may provide for the assignment of evaluations for limited periods of time, and, in such cases an automatic restoration of the evaluation would not be warranted even when the current residuals are not known at the time of the reduction. Rossiello v. Principi, 3 Vet.App. 430 (1992). However, the Board finds that the provisions of Diagnostic Code 5055, applicable in this case, do not preclude the continuation of a 100 percent schedular evaluation beyond one year, and as such, do not constitute an exception to the rule in Dofflemyer. The facts in this case establish that the RO granted an increased 100 percent schedular evaluation under the provisions of 38 C.F.R. Part 4, Code 5055, effective April 1, 1991, and then reduced the evaluation to 30 percent effective April 1, 1992. The evidence of record establishes that the veteran underwent a total right knee arthroplasty on February 7, 1991. Because of the procedure, the veteran became entitled to a 100 percent schedular evaluation for 1 year. 38 C.F.R. Part 4, Code 5055. In order to have warranted continuation of the 100 percent schedular evaluation beyond March 31, 1992, the evidence would have to be void of any clinical demonstration of improvement of the chronic residuals. 38 C.F.R. § 3.344. In February 1992, a VA examination disclosed a range of motion of the right knee from 5 to 90 degrees, and a complaint of right knee pain. She had a slight antalgic gait on the right knee. Scars were well healed and not noted to be symptomatic. There was a minimal amount of swelling about the knee. General alignment of the knee was normal. There was a 5 degree flexion contracture. There was no erythema or ecchymosis or other sign of infection or deep vein thrombosis. There was no instability noted. X-ray examination was characterized as showing acceptable alignment of the prosthesis. Such findings would not warrant an evaluation in excess of the minimum 30 percent evaluation allotted under Diagnostic Code 5055. There is no indication of severe painful motion or weakness, actual or functional limitation of flexion to 15 degrees, limitation of extension of 30 degrees or any ankylosis. 38 C.F.R. Part 4 Codes 5055, 5256, 5260, 5261 (1992). Similarly, the February 1992 VA examination disclosed a well-healed scar, and no instability. Again, such findings do not approximate the requirements for an evaluation in excess of the 30 percent evaluation currently assigned. See criteria as set out above. The Board, bolstered by a preponderance of the evidence, is left with the firm conviction that reduction of the 100 percent schedular evaluation to 30 percent was warranted, even after considering the provisions of 38 C.F.R. §§ 4.7 and 4.40 (1993). At the time of the reduction of the 100 percent schedular evaluation to 30 percent, the case did not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render inapplicable the regular schedular standards. 38 C.F.R. § 3.321. II. INCREASED RATING The veteran's current 30 percent evaluation contemplates the presence of severe knee impairment. The evaluation would also contemplate the presence of limitation of flexion to 15 degrees or limitation of extension of 20 degrees. 38 C.F.R. Part 4 Codes 5257, 5260, 5261. In order to warrant an increased evaluation, the evidence would have to establish extension limited by 30 degrees, including any functional limitation due to the presence of pain, or ankylosis of the knee joint. As discussed above, these criteria have not been clinically demonstrated. Rather, the preponderance of the evidence of record clearly establishes that the criteria have not been met. 38 C.F.R. § 4.40, Part 4 Codes 5256, 5261. When all the evidence is assembled, the Secretary, is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Based upon the record, the veteran has range of motion from 5 degrees extension to 90 degrees of flexion. Although there is painful motion, such range of motion, standing alone, would not warrant an increased evaluation. In addition, there is no evidence of recurrent subluxation or lateral instability. Accordingly, an evaluation in excess of 30 percent is not warranted. 38 U.S.C.A. § 5107; Gilbert. ORDER Restoration of a 100 percent schedular evaluation for postoperative residuals of a right knee injury, including a total right knee replacement, is denied. Entitlement to an increased rating for postoperative residuals of a right knee injury, including a total right knee replacement, is denied. U. R. POWELL 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.