BVA9500905 DOCKET NO. 93-10 886 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for service-connected residuals of a medial meniscectomy of the left knee, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. E. Coppola, Associate Counsel INTRODUCTION The veteran served on active duty from April 1943 to April 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of September 1992 from the St. Petersburg, Florida, Regional Office (RO), which denied a rating in excess of 10 percent for service-connected residuals of a medial meniscectomy of the left knee. In a November 1992 Report of Contact, it was noted that the veteran intended for the RO to adjudicate the issue of service connection for a left leg condition. At the personal hearing, the representative clarified that the veteran had sought service connection for a left leg condition. In March 1993, May 1990, the RO denied service connection for residuals of multiple abrasions of the lower extremities. It is not clear whether the veteran appealed that determination. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in not granting a rating in excess of 10 percent for service-connected residuals of his service-connected left knee disability because it did not take into account or properly weigh the evidence of record, including service medical records, Department of Veterans' Affairs (VA) clinical evidence, personal hearing testimony and statements submitted in support of the claim. He maintains that his disability causes constant pain and swelling. He also maintains that the knee is unstable and that he must wear a brace for support. He argues that he is not adequately compensated by the current 10 percent rating; therefore, an increase in disability benefits is warranted. 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 a rating in excess of 10 percent for residuals of a medial meniscectomy of the left knee. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been requested or obtained. 2. The probative evidence establishes that the service-connected residuals include limitation of motion which is no more than slight. The probative evidence does not reveal significant instability of the left knee and the evidence does not support a showing of significant functional impairment due to pain. 3. The facts of this case do not present an unusual disability picture with such factors as marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of a medial meniscectomy of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1), 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Based upon the veteran's statements in support of increased symptomatology, the Board finds that the claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). The evidence of record includes VA medical evidence, personal hearing testimony and statements submitted in support of the claim. The Board finds that all relevant evidence necessary for an equitable disposition of the instant appeal has been requested or obtained. The veteran has not indicated that additional, relevant evidence has not yet been obtained. The facts relevant to the issue on appeal have been properly developed and that the statutory obligation of the VA to assist the veteran has been satisfied. Id. In February 1973, the RO granted service connection for residuals of a medial meniscectomy of the left knee. The award was based on service records show that the veteran was hospitalized in November 1945 after the motorcycle he was riding collided with a truck. The records indicate that he sustained injuries to both knees and multiple abrasions to both legs in that accident. On examination, there were no obvious fracture deformities, but there was tenderness and increased joint fluid in the supra- patellar region of the left knee. X-ray examination was in fact negative for fractures and the progress notes indicate that the supra-patellar swelling in the left was decreasing. He was released from the hospital later that month. Although the medical examination at separation reported that there was no residual left knee limitation of motion or other left knee pathology, a statement provided by the veteran indicates that he had resultant stiffness of the knee and soreness of the leg. During a January 1973 personal hearing, the veteran reported that he had been treated by a private physician for residual left knee problems between 1947 and 1971, but that these records were unavailable. There is also a statement from Luther C. Rollins, M.D. indicating that he treated the veteran beginning in 1957 for medial meniscus symptoms with crepitus, popping and a transient inability in locking the left knee joint. He also indicated that he performed a knee tap for removing water from the knee joint in 1959. VA treatment records in February and June 1972 reveal complaints of left knee pain and instability. Examination showed some atrophy of the left quadriceps muscle, but the ligaments were stable. A subsequent arthrogram in October 1972 confirmed the diagnosis of a torn medial meniscus of the left knee, for which he underwent a medial meniscectomy. His post-operative course was benign and he was released on the fifth post-operative day without medication. Based on the evidence, the RO assigned a 10 percent disability rating, effective from February 11, 1972, a temporary total rating under paragraph 29, effective from September 18, 1972, and a 10 percent rating, effective from November 1, 1972. That rating has been in effect for over a period of twenty years and is now protected. 38 C.F.R. § 3.951 (1993). The claims folder shows that the veteran was not medically treated for residual left knee symptoms subsequent to the medial meniscectomy until 1984. The evidence also shows that VA orthopedic examinations of the left knee were performed in January and August 1985. The relevant medical findings were cited in the Board's January 1986 denial of a rating in excess of 10 percent for residuals of the left knee disorder. The outpatient records showed findings of mild swelling and tenderness and some limited, painful motion, but there was no effusion, erythema or warmth shown on X-ray examination in January 1984. The impression was an exacerbation of osteoarthritis and the veteran was issued a left knee brace. Subsequent X-ray examination findings in July 1984 showed changes consistent with degenerative joint disease. The records also show that fluid was aspirated from the knee that month. Motion of the knee remained limited and it was indicated that there may have been a tear of the lateral meniscus with possible cruciate ligament involvement. On VA examination in January 1985, there was some limitation of motion with complaints of pain and the circumference of the left thigh was one inch less than the right thigh. However, the lower extremities were well-aligned, the left knee was cool and there was no excessive fluid. The ligaments of the left knee were stable, patellofemoral motion was smooth and there was no pain on palpation of the patella. X-ray examination were not remarkable, and the physician stated that he could not find objective residual disability of the left knee aside from muscle atrophy. The physician stated that "a lot of [the veteran's] guarding of motion on the examination [was] faked or exaggerated." The physician based that statement on his personal observations of the veteran's movements during that examination. He also stated that objectively the veteran has a good knee but failed to redevelop the thigh muscle, and he stated that he was not certain why the veteran was wearing the Lenox Hill derotation brace. On VA examination in August 1985, the physician noted that the veteran was limping on the left leg with the knee bent. The left gastrocnemius had a flabby muscle with thickening in the region of the injury, but the veteran was able to walk on his toes without serious difficulty. The range of motion of the left knee was from 10-to-100 degrees of flexion without much crepitation on palpation. There was a one centimeter drawer sign at 90 degrees of flexion, but the collateral ligaments were described as snug when the knee was extended. There was no locking of the knee joint and no fluid present. It was noted that the circumference of the left thigh was three-fourths of one inch less than the right thigh. X-ray examination again revealed narrowing of the medial compartment of the knee joint. The physician noted that the veteran walked with a good stride with his brace in place but limped because he was not placing the left heel on the ground. Based on all the evidence of record at that time, the Board determined that the residuals of the left knee disorder were not productive of more than slight impairment. 38 U.S.C. § 355 (recodified at 38 U.S.C.A. § 1155 (West 1991)); 38 C.F.R. § 4.71a, Diagnostic Code 5259. The veteran seeks a rating in excess of 10 percent for residuals of a medial meniscectomy of the left knee. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Board notes that where an increase in a service-connected disability is at issue, the present level of disability is of primary concern. Although review of the recorded history of a service-connected disability is important in making a more accurate evaluation, see 38 C.F.R. § 4.2 (1993), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The Schedule for Rating Disabilities provides that arthritis due to trauma will be rated on limitation of motion of the affected parts as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved. 38 C.F.R. § 5003. An appropriate disability rating from no percent to 50 percent may be assigned on the basis of residual limitation of flexion and/or extension of the leg. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261; see also 38 C.F.R. §4.71, Plate II (1993) (providing a standard measurement for ankylosis and joint motion measurement). The Schedule also provides for a 10 percent rating for slight recurrent subluxation or lateral instability, 20 percent for moderate residual findings, and 30 percent for severe subluxation or lateral instability of the knee. 38 C.F.R. §4.71a , Diagnostic Code 5257 (1993). See 38 C.F.R. §4.71a , Diagnostic Code 5270 (1993); see also 38 C.F.R. §4.71, Plate II (1993) (providing a standard measurement for ankylosis and joint motion measurement). The most recent medical evidence includes VA outpatient treatment records which are dated from December 1990 to May 1992. These records include treatment for unrelated conditions and are not relevant to the issue on appeal. The records show that in February 1991 the veteran had no complaints and indicated that his arthritis was under control, but it was noted that the knees seemed to swell. In May 1991, the veteran reported that the left knee continued to be stiff but was helped by his knee brace. On examination in December 1991, the veteran again had no complaints. The physician noted the surgical scar from the meniscectomy and reported that it was well-healed. There was no effusion and range of motion testing of the knee was from 0-to- 100 degrees. X-ray examination revealed early degenerative disease. The veteran was instructed to continue medications and requested to return to the outpatient clinic in April 1992. At that time, the veteran complained of left knee pain On examination there was no effusion or patellar crepitus. The diagnosis was questionable osteoarthritis of the left knee, and he was given medication and instructed to return for follow-up examination in four months. On VA examination in July 1992, the physician listed a general medical history pertinent to the left knee. The veteran's subjective complaints were reported as swelling, popping and clicking. The physician noted that the veteran wore a Lenox Hill brace and that there was a well-healed sixteen centimeter paramedian incision. The veteran displayed left knee range of motion from 0-to-120 degrees, and the physician reported 1+ medial collateral laxity and 2+ anterior cruciate ligament laxity. The quadriceps circumference was measured at 49 centimeters on the right and 46 centimeters on the left. X-ray examination of the left knee demonstrated patellofemoral and medial compartment osteoarthritis. This was compared with previous X-ray studies of in 1988 and 1989 and there was no significant change in the appearance of the left knee. The reported diagnosis was status-post medial meniscectomy with associated quadriceps atrophy. The outpatient records are probative and persuasive evidence, in that, they show no more periodic examination and evaluation of the left knee. In fact, at the January 1993 personal hearing held at the RO, the veteran testified that he is scheduled for outpatient follow-up about every three months. Transcript, hereinafter Tr. 14. In December 1991, the physician reported that the surgical scar from the meniscectomy was well-healed. There was no effusion and range of motion testing of the knee was from 0-to-100 degrees. These range of motion findings are consistent with the 1985 range of motion findings showing 10-to- 100 degrees of flexion. In July 1992, the veteran displayed left knee range of motion from 0-to-120 degrees. A longitudinal view of the objective range of motion studies persuasively establish that flexion of the left leg is not limited to less than 45 degrees and extension is not limited to more than 45 degrees. Based on these objective studies, the evidence does not support a rating in excess of 10 percent on the basis of limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Clearly, this evidence also shows that the residuals do not include ankylosis of the left knee. The veteran testified that his left knee in unstable and pops out when he is not wearing the knee brace. Tr., 12-13. The most recent VA outpatient treatment records show that the veteran had no complaints of left knee instability, but only left knee stiffness which was helped by his knee brace. On VA examination in July 1992, the physician reported 1+ medial collateral laxity and 2+ anterior cruciate ligament laxity, but the reported diagnosis did not include a finding of more than slight instability. The Board finds that the medical findings are persuasive evidence that the residuals of the left knee disorder do not include more than slight subluxation. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The recent outpatient records and VA examination findings fail to show that the veteran's complaints of pain have caused residual functional impairment. This evidence supports the view that the veteran is adequately compensated by the current 10 percent rating and is not entitled to additional compensation on the basis of functional impairment due to residual muscle atrophy or pain. 38 C.F.R. §§ 4.40, 4.45 (1993). The Board finds that the evidence is not evenly balanced and the criteria for a rating in excess of 10 percent for residuals of a medial meniscectomy of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. The evidence shows that the veteran is currently 70 years of age. In a March 1991 statement, the veteran indicated that he performs part-time employment as an inspector at a polling center and as a gate security for the Daytona Speedway. Although it is not clear whether he continues to perform his part-time employment, he has not submitted evidence that he his left knee disability has caused marked interference with that employment. Additionally, the evidence shows that he has not recently been hospitalized for residuals of his left knee disorder. Consequently, the Board finds that the veteran's service-connected disability does not result in marked interference with his employment or that he has been hospitalized frequently for symptoms of left knee disorder or that he requires frequent treatment. For these reasons, the Board finds that the facts of this case do not show such an unusual disability picture as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a rating in excess of 10 percent for residuals of a medial meniscectomy of the left knee is denied. RENÉE M. PELLETIER 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.