BVA9502145 DOCKET NO. 93-25 768 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an evaluation in excess of 20 percent for status post medial meniscectomy of the left knee before April 6, 1992. Entitlement to an evaluation in excess of 30 percent for status post medial meniscectomy of the left knee from May 1, 1993. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Associate Counsel INTRODUCTION The veteran served on active duty from May 1978 to October 1982. In a motion dated in October 1994, the veteran, citing 38 C.F.R. § 20.900 (1994), moved that his appeal be advanced on the docket of the Board of Veterans' Appeals (Board) due to financial hardship. The motion was granted in January 1995. In a rating decision dated December 12, 1991, the regional office (RO) denied entitlement to a disability rating in excess of 10 percent for the service-connected left knee disorder. The veteran filed a notice of disagreement, and a statement of the case was issued in March 1992. A substantive appeal was received in April 1992. In a July 8, 1992, rating decision, the RO maintained the veteran's schedular rating at 10 percent and awarded a 100 percent rating pursuant to 38 C.F.R. § 4.30 from April 6, 1992 through May 1992. In a rating decision dated September 8, 1992, the RO awarded the veteran a schedular rating of 20 percent effective from July 24, 1991 and from June 1, 1992. On October 13, 1992, the RO granted the veteran an extension of his total convalescent rating through July 1992; a further extension of this evaluation through October 1992 was granted on January 13, 1993. Pursuant to a rating decision of June 28, 1993, an additional extension of the total convalescent rating through April 1993 was granted; in addition, the RO assigned a schedular rating of 30 percent, effective May 1, 1993. In July 1993, the veteran submitted an Application for Increased Compensation Based on Unemployability. The regional office (RO) noted in an August 1993 Statement of the Case that it had received the claim for individual unemployability, but that it "cannot be processed at this time." On a VA Form 119 dated October 20, 1993, the veteran reportedly related that he was no longer working even though he was still on the "employment rolls" of the Post Office. This matter is referred to the RO for appropriate disposition. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his left knee disability has increased in severity and is more disabling than the 30 percent evaluation currently assigned. He maintains that, although he is employed, he is unable to work due to the left knee disability and that an extraschedular evaluation should be assigned. 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 of entitlement to an evaluation in excess of 30 percent after April 30, 1993, for status post medial meniscectomy of the left knee. It is, however, the decision of the Board that the preponderance of the evidence is not against the award of a 30 percent rating for the service-connected left knee disorder from July 24, 1991, through April 5, 1992. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO insofar as possible. 2. The symptomatology associated with the veteran's left knee disability more nearly approximates severe impairment of the knee for the period commencing July 24, 1991, through April 5, 1992. 3. The impairment associated with the service-connected left knee disorder is not exceptional or unusual. 4. The veteran does not have significant limitation of extension of the left knee. 5. There is no ankylosis of the left knee. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent after April 30, 1993, for status post medial meniscectomy of the left knee are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.10, 4.40, 4.71a, Diagnostic Codes 5257, 5261 (1994). 2. An evaluation of 30 percent from July 24, 1991, through April 5, 1992, for status post medial meniscectomy of the left knee is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.71a, Diagnostic Codes 5257, 5261 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board initially finds that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, it is not inherently implausible. We also find that the Department of Veterans Affairs (VA) satisfied its statutory obligation to assist the veteran in the development of facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1993). On appellate review, we see no areas in which further development may be fruitful. During active service the veteran underwent a left medial meniscectomy in March 1981, and he was service connected for a left medial meniscectomy evaluated at 20 percent disabling in a November 1982 rating decision. On orthopedic examination in September 1983, there was normal gait and range of motion of the left knee. There was no swelling, edema, or effusion. The evaluation was decreased to 10 percent disabling in an October 1983 rating decision. On examination in February 1985, there was no effusion. The left knee displayed slight lateral ligament laxity. In January 1987, a VA orthopedist determined that a vocational objective for the veteran as an auto body repairman would be "contra-indicated" because of his left knee disability. On examination in June 1988, there was no subluxation or lateral instability of the left knee. Disability evaluations are determined by application of a schedule of ratings based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1993). The inquiry into disability evaluations centers on the ability of the body or system in question to function in daily life with specific reference to employment. 38 C.F.R. § 4.10 (1993). In evaluating claims for increased ratings, we must evaluate the veteran's condition with a critical eye towards the lack of usefulness of the body part or system in self- support. 38 C.F.R. § 4.10 (1993). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion. 38 C.F.R. § 4.40 (1993). If a question arises as to which of two evaluations is to be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (1993). On July 24, 1991, the veteran submitted a request for reevaluation of his left knee. VA progress notes for July 10, 1991, reflect complaints of pain and locking of the left knee with a feeling of heat in the joint. There was tenderness over the posteromedial insertion with full range of motion. There was no clicking, laxity, or effusion. It was reported that radiographs indicated the presence of an osteophyte or a loose body in the posterior aspect. The possibility of a neuroma was mentioned. The left posteromedial incision site was injected with lidocaine, and the veteran related relief of symptoms. On July 24, 1991, it was stated that although he had good relief from the injection, the pain returned. Range of motion was from minus five degrees to 130 degrees. The assessment was neuroma, left. He refused "surgery at this point." A December 1991 "MRI" was interpreted as showing a large effusion of the left knee and probable rupture of the anterior cruciate ligament, complex tears of the posterior horn of the medial and lateral "mensci", disruption of the medial collateral ligament, osteoarthritis, and soft tissue mass anterior to the joint space. On April 6, 1992, the veteran underwent a left anterior cruciate ligament reconstruction. He was discharged from the hospital on April 10, 1992, in good condition. In August 1992, flexion of the left knee was to 105 degrees and extension was to five degrees. Progress notes for October 1992 reflect some improvement of the left knee but that the knee would still swell. In December 1992, effusion and instability were reported, and the assessment was failed anterior cruciate ligament reconstruction. Similar findings were noted in January 1993. The veteran has been evaluated under Diagnostic Code 5257 for impairment of the left knee and is currently assigned a 30 percent evaluation. See 38 C.F.R. § 4.71a (1993). Diagnostic Code 5257 provides ratings for impairment of the knee involving recurrent subluxation or lateral instability at 10 percent disabling for slight impairment, 20 percent disabling for moderate impairment, and 30 percent disabling for severe impairment. 38 C.F.R. § 4.71a (1993). As noted, the veteran is currently assigned a 30 percent evaluation, the maximum rating under Diagnostic Code 5257, and therefore an increased evaluation under that code is not appropriate. The veteran's disability might possibly warrant a higher evaluation under Diagnostic Code 5261 for limitation of extension of the leg to 30 degrees for a 40 percent evaluation, or to 45 degrees limitation of extension for a 50 percent evaluation. The August 1992 VA examination, however, shows that the extension of the veteran's left leg was to 5 degrees, which equates to a noncompensable evaluation under Diagnostic Code 5261. There is no ankylosis. The evidence of record, therefore, does not support an evaluation in excess of 30 percent disabling on a schedular basis. The veteran specifically argues that his left knee disability warrants an increased evaluation on an extraschedular basis. While the rating schedule will be used for evaluating the degree of disabilities in claims for disability compensation, in exceptional cases an extra-schedular evaluation may be assigned commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). The veteran has stated that he is not able to return to work due to the left knee disability. The evidence of record, however, does not show an exceptional or unusual disability picture. The lengthy convalescence associated with the April 1992 left knee reconstruction was completed at the end of April 1993, and the most recent clinical evidence is a January 1993 letter from a VA Medical Center noting that a physician recommended three additional months of convalescence before returning to full-time duty. The Board concedes that through April 1993 recovery from the surgery was prolonged and without substantial improvement, as evidenced by the 100 percent evaluation for convalescence. The record, however, does not contain subsequent evidence of interference with employment beyond that to be expected from a severe knee disability. The veteran has failed to present persuasive evidence that his particular knee disorder is so beyond the ordinary as to render the rating schedule inapplicable. The record does not contain evidence indicating frequent periods of hospitalizations. In fact, the April 1992 hospitalization, including surgery, was for less than a week. The record contains VA clinical records showing out-patient treatment in May 1992 through January 1993, as well as letters from VA medical facilities discussing recommendations for the extension of the convalescence. These documents do not show periods of hospitalization after the April 1992 left knee reconstruction. In addition, while these reports indicate that the surgery and therapy were unsuccessful, they lack any data or comment that address the requirements of 38 C.F.R. § 3.321(b)(1). The remaining issue is the rating for the period from July 24, 1991, to April 5, 1992. Although the status of the left knee condition after April 1992 is clearly not dispositive of the severity before that time, it is not without probative value in that respect. It is apparent that the knee problems that led to the veteran's surgery in April 1992 and the prolonged convalescence thereafter were of serious magnitude. The RO has concluded that the disability level during this period was moderate. In the Board's judgment, the complaints of pain and associated dysfunction appear consistent with the more pessimistic findings noted after April 1992. 38 C.F.R. §§ 4.7, 4.40 (1994) ORDER Entitlement to an evaluation in excess of 30 percent for status post medial meniscectomy of the left knee after April 30, 1993, is denied. An evaluation of 30 percent for status post medial meniscectomy of the left knee from July 24, 1991, through April 5, 1992, is granted, subject to controlling regulations affecting the payment of monetary awards. JOHN E. ORMOND 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.