BVA9502569 DOCKET NO. 92-04 608 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased evaluation for residuals of a gunshot wound to the left thigh, currently evaluated as 40 percent disabling. 2. Entitlement to an increased evaluation for residuals of a fracture of the left femur with extremity shortening and total knee replacement, currently evaluated as 30 percent disabling. 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Associate Counsel INTRODUCTION The veteran served on active duty from March 1941 to August 1946. This appeal arises from August 1990 and subsequent rating decisions of the Seattle, Washington, Regional Office (RO). The August 1990 rating decision continued a 40 percent evaluation for residuals of a gunshot wound to the left thigh and a 20 percent evaluation for a left femur fracture with extremity shortening. These evaluations had been in place since August 1948. A December 1991 rating decision increased the evaluation for the left femur fracture with extremity shortening from 20 percent to 30 percent. In June 1993, the Board of Veterans' Appeals (Board) remanded the case for the RO to adjudicate the issue of service connection for left knee pathology, to readjudicate the issue of the increased evaluation for the gunshot wound, and to consider the issue of an extraschedular evaluation. Subsequently, a January 1994 rating decision continued the 40 percent evaluation for the gunshot wound of the left thigh, included the total left knee replacement in the 30 percent evaluation for residuals of a fracture of the left femur with extremity shortening, and granted service connection for degenerative joint disease of the lumbar, thoracic, and the cervical spine. A 20 percent evaluation was assigned for the lumbar spine disability. The rating decision also denied the claim for an extraschedular evaluation. The combined disability evaluation was increased from 60 percent to 70 percent. An April 1994 rating decision continued the prior denials. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to higher evaluations for his service-connected left thigh and knee disorders. He contends that the knee is lax and unstable, that the prosthesis is loose, and that he must use a cane to walk. He also contends that he is entitled to a total evaluation based on individual unemployability. 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 preponderance of the evidence is against the claim for an evaluation in excess of 40 percent for residuals of a gunshot wound to the left thigh; that the preponderance of the evidence is against the claim for an evaluation in excess of 30 percent for residuals of a fracture of the left femur with extremity shortening and total knee replacement; and that the evidence supports the claim for a total disability rating for compensation purposes based on individual unemployability. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran's service-connected gunshot wound of the left thigh is currently at the highest rating contemplated by the diagnostic code. 3. The veteran's service-connected residuals of a fracture of the left femur with extremity shortening and total knee replacement is manifested by lateral instability but not by severe painful motion or weakness, ankylosis of the knee, limitation of leg extension to 30 degrees, or nonunion of the tibia and fibula. 4. The veteran's service-connected disabilities when combined together are shown to prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for gunshot wound of the left thigh have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 5313 (1994). 2. The criteria for an evaluation in excess of 30 percent for residuals of a fracture of the left femur with extremity shortening and total knee replacement have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Codes 5055, 5256, 5261, 5262 (1994). 3. The criteria for a total disability rating for compensation based on individual unemployability have been met. 38 C.F.R. § 4.16 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). That is, he has presented claims which are plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). I. Gunshot Wound of Left Thigh The service medical records reveal that the veteran sustained a severe perforating machine gun bullet wound which entered the postero-lateral aspect of the left thigh and exited the antero- lateral aspect of the left thigh in combat in Belgium in December 1944. Service connection for residuals of gunshot wound to the posterior thigh muscle group was granted in September 1946. A disability evaluation of 30 percent was assigned under Code 5313, effective August 1946. A 30 percent evaluation was also assigned for the anterior thigh muscle group. A rating decision of September 1948 combined the muscle ratings and assigned a 40 percent evaluation under code 5313, effective from August 1948. This evaluation has been continued in subsequent rating decisions. The veteran contends that he is entitled to a higher evaluation. 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 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. The veteran's gunshot wound residuals are rated under code 5313. The current 40 percent evaluation is the highest available under this code section and contemplates a severe level of disability of the posterior thigh muscle group. 38 C.F.R. Part 4, Diagnostic Code 5313 (1994). There is no basis for an increase in the evaluation of the veteran's gunshot wound residuals under code 5313. It is noted that the veteran's left femur and knee residuals are currently evaluated as 30 percent disabling. In view of the grant of a total rating based on individual unemployability addressed below, the Board concludes that the veteran's gunshot wound residuals are adequately compensated. II. Residuals of a Fracture of the Left Femur with Extremity Shortening and Total Knee Replacement The service medical records reveal that the machine gun bullet which entered the veteran's left thigh in December 1944 also caused a compound, comminuted fracture of the middle third of the left femur. Service connection for weak union of the left femur, some leg shortening and some knee disability was granted in September 1948. A disability evaluation of 20 percent was assigned under Code 5255, effective August 1948. In November 1991, a hearing officer at the RO recommended that this evaluation be increased to 30 percent. A December 1991 rating decision assigned the 30 percent evaluation from May 1990. In May 1992, the veteran underwent a left knee total arthroplasty. A January 1994 rating decision assigned a temporary 100 percent evaluation for the 1 year period following the surgery and assigned a 30 percent evaluation from August 1993 under code 5055 for residuals of fracture of the left femur with extremity shortening and total knee replacement. The veteran contends that he is entitled to a higher evaluation. 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 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. The veteran's disability is currently rated under code 5055. A 60 percent evaluation is contemplated for chronic residuals of knee replacement consisting of severe painful motion or weakness in the extremity. The current 30 percent evaluation is the minimum rating under this code section and is determined by analogy to code sections 5256, 5261, and 5262. 38 C.F.R. Part 4, Diagnostic Code 5055 (1994). Code 5256 requires ankylosis of the knee for a higher rating. 38 C.F.R. Part 4, Diagnostic Code 5256 (1994). Code 5261 requires limitation of leg extension to 30 degrees for a rating above 30 percent. 38 C.F.R. Part 4, Diagnostic Code 5261 (1994). Code 5262 requires nonunion of the tibia and fibula, with loose motion, requiring a brace, for a 40 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 5262 (1994). The most recent VA examination was conducted in February 1994. The veteran complained of occasional pain and stiffness in the left knee. He used a cane for stability as the knee was moderately unstable and was becoming more loose with time. On examination, the veteran walked with the use of a cane. The left knee joint was noticeably lax with audible clicks with any manipulation or movement of the knee. There was a popping and snapping sound when he walked. The veteran denied any pain at the time of the examination. He stated that since receiving the prosthesis it was easier for him to climb stairs and go up and down inclined areas than previously. He stated that he still had difficulty going down stairs and inclines. There was no swelling. The left leg was one and three eighths inches shorter than the right as the result of the gunshot wound to the thigh. The only other deformity was the surgical scar for the knee replacement. There was some lateral instability of the left knee. Left knee flexion was limited to 105 degrees and extension was to 0 degrees. X-rays showed position and alignment of the femoral, tibial and retropatellar components of the prosthesis were satisfactory, with no active or acute bone or soft tissue radiographic abnormality appreciated. The diagnosis was status post total left knee prosthesis that is abnormally loose, but no abnormal radiographic findings. The recent examination findings demonstrate that the veteran's left knee disability has improved somewhat with the prosthesis. There is no showing of the severe painful motion or weakness needed for a 60 percent evaluation under code 5055. 38 C.F.R. Part 4, Diagnostic Code 5055 (1994). There is also no demonstration of ankylosis of the knee, limitation of leg extension to 30 degrees, or nonunion of the tibia and fibula which would permit a higher evaluation by analogy. 38 C.F.R. Part 4, Diagnostic Codes 5055, 5256, 5261, 5262 (1994). The examination report indicates that the most salient characteristic of the veteran's knee pathology is lateral instability. The Board notes that the highest evaluation available under code 5257 for lateral instability of the knee is 30 percent. This rating contemplates a severe level of impairment. 38 C.F.R. Part 4, Diagnostic Code 5257 (1994). Accordingly, an evaluation in excess of 30 percent for the veteran's residuals of a fracture of the left femur with extremity shortening and total knee replacement is denied. There is no equipoise between the positive and negative evidence, therefore no reasonable doubt issue is raised. 38 C.F.R. § 3.102 (1994). III. Total Evaluation for Compensation Purposes Based on Individual Unemployability The veteran's representative contends that the RO erred in not considering the provisions of 38 C.F.R. § 4.16 in adjudicating the issue of the veteran's entitlement to an extraschedular consideration. The representative requested a remand or referral to the RO for consideration of this issue. However, in light of the fact that the issue of the extraschedular criteria is currently in appellate status, the representative's contention will be addressed by the Board. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16 (1994). Service connection is in effect for residuals of a gunshot wound to the left thigh, evaluated as 40 percent disabling; residuals of a fracture of the left femur with extremity shortening and total knee replacement, evaluated as 30 percent disabling; hepatitis, evaluated as noncompensably disabling; degenerative joint disease of the lumbar spine, evaluated as 20 percent disabling; degenerative joint disease of the thoracic and cervical spines, evaluated as noncompensably disabling. A combined 70 percent evaluation has been in effect since August 1993. This rating exceeds the minimum rating requirements for the assignment of a total rating based on individual unemployability. The available evidence indicates that the veteran has an eighth grade education. He was apparently employed as a watchmaker and jeweler in the past. There is no indication that he is currently employed. The veteran requires a cane for stability and has difficulty walking up and down stairs or inclined areas. He also has a significant lower back disability which is service- connected. The record does not indicate any significant nonservice-connected disabilities which may affect his employability. His educational background is rather limited. The service-connected disabilites basically prevent him from getting around unless he exercises great caution and uses a cane. The prosthesis, although beneficial, has caused loose motion and lateral instability in the left knee. The veteran had a significant employment handicap which he overcame in the past. However, it is understandable that he has found it too difficult to continue working, irrespective of his age, due to the severity of these combat wound residuals. Based upon the foregoing, the Board finds that the evidence supports the claim for a total disability rating for compensation based on individual unemployability. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 4.16 (1994). In light of this determination, the RO's findings under 38 C.F.R. § 3.321(b) are moot and will not be addressed. ORDER An evaluation in excess of 40 percent for residuals of a gunshot wound to the left thigh is denied. An evaluation in excess of 30 percent for residuals of a fracture of the left femur with extremity shortening and total knee replacement is denied. A total disability evaluation for compensation purposes based on individual unemployability is granted, subject to the applicable laws and regulations governing the payment of monetary awards. JAN DONSBACH 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.