BVA9503511 DOCKET NO. 91-46 024 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased evaluation for a service-connected right knee disability (chondromalacia with history of internal derangement and meniscectomy), currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for a service-connected left knee disability (chondromalacia and degenerative changes), currently evaluated as 10 percent disabling. 3. Entitlement to an increased evaluation for a service-connected left ankle disability (traumatic arthritis), currently evaluated as 10 percent disabling. 4. Entitlement to an increased evaluation for a service-connected cluster headache disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty from September 1964 to June 1968, from December 1970 to June 1983, and from April 1984 to January 1988. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 1989 rating decision of the San Diego, California, Department of Veterans Affairs Regional Office (VARO). The procedural history of this case has been thoroughly set forth in the Board's remand decision of November 2, 1993. In accordance with the Board's November 1993 remand, the requested development was accomplished, to the extent possible, and the case has been returned to the Board for further appellate review. With respect to the development of the record on appeal, it is the Board's opinion that VARO fulfilled its statutory duty to assist the appellant in developing the pertinent facts in this case; it appears that VA and private medical records which are available have been associated with the claims file. See Dusek v. Derwinski, 2 Vet.App. 519 (1992). Accordingly, the Board will proceed to a disposition of the claims presently certified for appellate consideration. See Certification of Appeal, VA Form 1- 8 (confirmed on December 30, 1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that his service-connected disabilities, for which he currently seeks increased ratings, are of sufficient severity so as to warrant higher disability ratings. 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 increased ratings for the appellant's service-connected right knee, left knee, left ankle and cluster headache disabilities. FINDINGS OF FACT 1. The service-connected right and left knee disabilities are currently manifested by complaints of discomfort and pain with associated swelling, occasional sliding and locking, with clinical findings significant for crepitus on passive flexion and extension of the right knee and x-ray evidence showing mild degenerative changes in each knee, but with no clinical evidence of significant limitation of motion, subluxation, lateral instability or other residual disability. 2. The service-connected left ankle disability is currently manifested by complaints of "off and on" discomfort and morning stiffness, with clinical findings significant for nearly full range of motion of the left ankle on plantar flexion (40/45), but with more limited motion on dorsiflexion (5/20). X-rays show mild degenerative changes in each ankle, with no evidence of acute bone pathology or soft tissue abnormalities. 3. The service-connected headache disorder is currently manifested by subjective complaints of severe migraine-type attacks involving cluster headaches in the temporal region, occurring approximately one to two times per year, but which are not so severely disabling that he is unable to maintain employment. CONCLUSIONS OF LAW 1. The appellant's service-connected right and left knee disabilities are no more than 10 percent disabling pursuant to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 5257 (1993). 2. The appellant's service-connected left ankle disability is no more than 10 percent disabling pursuant to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 5271 (1993). 3. The service-connected cluster headache disorder is no more than 10 percent disabling pursuant to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 8100 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claims are well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate review purposes by the VA, and that a disposition on the merits is now in order. The appellant is seeking higher disability evaluations for his service-connected knee disabilities (chondromalacia with history of internal derangement and meniscectomy, right knee, and chondromalacia and degenerative changes, left knee), left ankle disability (traumatic arthritis), and for his cluster headaches disorder. 38 U.S.C.A. § 1155 (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 C.F.R. Part 4 (1993). Separate diagnostic codes identify the various disabilities. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1993); Peyton v. Derwinski, 1 Vet.App. 282 (1991). Chondromalacia of the Right and Left Knees After having reviewed all of the relevant medical evidence, the Board is of the opinion that the appellant is appropriately rated for his service-connected right and left knee disabilities each at the 10 percent disability rating level. The appellant's complaints of knee pain, with associated swelling, occasional "sliding" and locking, noted throughout the record in this case, have been considered; however, the Board assigns the greater weight of probative value to the objective medical evidence, in particular, the recent VA compensation examination (VAX) conducted in June 1994. Clinical findings made at that time were essentially negative; range of motion of the left knee was nearly full (0 to 135/140 degrees), while range of motion of the right knee was more limited (0 to 100 degrees). In addition, there was no evidence of effusion, locking, catching, laxity or joint line tenderness in either knee. Findings were significant only for some crepitus with passive motion of the right knee. X-rays showed only mild degenerative changes, with a moderate amount of spur formation over the patella in each knee, otherwise, there was no evidence of acute bone pathology or soft tissue abnormality. VAXs conducted in 1989 and 1993 were essentially consistent with the findings made on examination in 1994. Based on the above findings, and in accordance with the provisions of 38 C.F.R. §§ 4.7, 4.20 (1993), the undersigned concludes that the disability picture presented supports a 10 percent evaluation for each knee, according to the schedular criteria set forth in diagnostic code 5257, which provides for a 10 percent rating for slight impairment of the knee manifested by recurrent subluxation or lateral instability. 38 C.F.R. Part 4, Code 5257 (1993). When viewed in conjunction with the objective medical evidence and the current extent of industrial impairment, the Board believes that a higher disability evaluation is not warranted. The Board has taken into consideration the appellant's complaints of discomfort and pain, although such complaints appear to be unrelated to the level of symptomatology demonstrated by the medical evidence of record. 38 C.F.R. § 4.40 (1993). Based upon the objective medical evidence, the Board concludes that a 20 percent rating under diagnostic code 5258 (cartilage removal with frequent episodes of "locking" pain and joint effusion) or 5260-61 (limitation of motion of the leg on flexion or extension) is not warranted in this case due to clinical findings which are negative for knee locking, joint line tenderness, or incomplete range of motion. A combined rating under diagnostic codes 5014-5257 is not required in this case since each knee disability is currently manifested by some limitation of motion, albeit slight, and accordingly, has been assigned a compensable evaluation under code 5257. Traumatic Arthritis of the Left Ankle After having reviewed the relevant medical evidence, the Board is of the opinion that the appellant is appropriately rated for his service-connected left ankle disability at the 10 percent disability rating level. A 10 percent disability rating is warranted for moderate limitation of motion of the ankle; a 20 percent disability rating is warranted for marked limitation of motion. 38 C.F.R. Part 4, Diagnostic Code 5271 (1993). The appellant's left ankle disability is currently manifested by complaints of "off and on" discomfort and morning stiffness, with clinical findings on recent VAX conducted in June 1994 significant for nearly full range of motion of the left ankle on plantar flexion (40/45), but with more limited motion on dorsiflexion (5/20). X-rays taken on the June 1994 examination show only mild degenerative changes in each ankle, with no evidence of acute bone pathology or soft tissue abnormalities. Based on these finding, the undersigned concludes that the disability picture is consistent with "moderate" limitation of motion which warrants a 10 percent rating according to the schedular criteria set forth in diagnostic code 5271. The appellant's complaints referable to his left ankle do not appear to be at such a level as to warrant a higher disability for "marked" impairment. A combined rating under diagnostic codes 5010-5271 is not required in this case since the left ankle disability is currently manifested by limitation of motion, and accordingly, has been assigned a compensable evaluation under code 5271. Cluster Headaches In the opinion of the Board, the disability picture presented is consistent with a 10 percent disability evaluation under diagnostic code 8100. 38 C.F.R. § 4.7 (1993). According to the Rating Schedule, migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling; a 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one per month over the last several months. 38 C.F.R. Part 4, Diagnostic Code 8100 (1993). A 50 percent rating for very frequent, completely prostrating and prolonged migraine attacks productive of severe economic inadaptability represents the maximum disability evaluation rating under diagnostic code 8100. The medical evidence of record reflects a current diagnosis of "chronic headaches" since 1970, noted on the report of VA neurological examination conducted in June 1992, and consistently described by the appellant as involving cluster-type headaches localized in the temporal region with associated migraine symptomatology. The appellant has reported that his headaches recur on an average of one to two times each year, with each headache lasting one to two weeks per episode. His subjective complaints and description of the frequency of his headache symptoms noted throughout the record in this case appear consistent with the objective evidence of record; however, in view of the relative infrequent nature of his headaches and fact that the appellant has been able to maintain employment, his headaches are not of sufficient severity so as to warrant a 30 percent rating for "characteristic prostrating attacks averaging one per month over the last several months." Based on these findings, the undersigned concludes that the disability picture presented supports a 10 percent disability evaluation according to the schedular criteria set forth under diagnostic code 8100. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1993). There is no evidence that the claimed service-connected disabilities present 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. Hence, referral by VARO to VA officials under the above-cited regulation was not required. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required under the provisions of 38 U.S.C.A. § 5107(b) (West 1991). ORDER An increased disability rating for a right knee disability is denied. An increased disability rating for a left knee disability is denied. An increased disability rating for a left ankle disability is denied. An increased disability rating for cluster headaches is denied. KENNETH R. ANDREWS, JR. 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.