BVA9502385 DOCKET NO. 92-15 329 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for the veteran's service- connected postoperative residuals of a right knee injury, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Vecchiollo, Associate Counsel INTRODUCTION The veteran served on active duty from September 1978 to August 1982. This matter comes before the Board of Veterans' Appeals (hereinafter Board) from an appeal of a November 1991 rating determination of the Department of Veterans Affairs (hereinafter VA) Regional Office (hereinafter RO) located in Cleveland, Ohio. The notice of disagreement was received in December 1991. The statement of the case was furnished to the appellant in March 1992. A substantive appeal was received in June 1992. The Board remanded the case in July 1993. The RO, in a February 1994 decision, granted an increase to 20 percent. The RO, in a decision in April 1994, denied entitlement to service connection for a left knee disability and a low back disability; both claimed as secondary to the veteran's service connected postoperative residuals of a right knee injury. The veteran filed a notice of disagreement with respect to this issue in May 1994. However, a statement of the case was never issued, these issues are referred to the RO to issue a statement of the case. As a result, these issues are not on appeal in accordance with the provisions of 38 U.S.C.A. § 7105 (West 1991). Accordingly, the veteran in documents, received in February and May 1994, asserted that, he is entitled to an effective date earlier than February 1, 1992, for an increased rating for his service-connected postoperative residuals of a right knee injury. As the issue has not yet been addressed, it is also referred to the RO to take the necessary steps to fully develop and adjudicate this issue in accordance with the provisions of 38 U.S.C.A. § 7105. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected postoperative residuals of a right knee injury should be rated more than 20 percent disabling, due to the restrictions it has placed on his activities and the pain and swelling that the disability causes him as evidenced by the three surgical procedures performed on the knee and the deformity shown on x-ray evaluations. 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 a disability rating of more than 20 percent for the veteran's service-connected postoperative residuals of a right knee injury is not warranted. FINDINGS OF FACT 1. The medical evidence reflects that the veteran's service- connected postoperative residuals of a right knee injury is manifested by moderately advanced degenerative changes. 2. The veteran has no instability or subluxation in the right knee, and the range of motion is approximately 5 degrees to 120 degrees. 3. The veteran's postoperative residuals of a right knee injury result in no more than moderate impairment. CONCLUSION OF LAW A disability rating higher than 20 percent for the veteran's service-connected postoperative residuals of a right knee injury is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, Part 4, Diagnostic Codes 5003, 5256, 5257, 5261 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are based on schedular requirements which reflect the average impairment of earning capacity occasioned by the current state of a disorder. 38 U.S.C.A. § 1155 (1993). Here, the RO has rated the veteran's right knee under Diagnostic Code (DC) 5299 by analogy to 5257 of the Department of Veterans Affairs (VA) Schedule for Rating Disabilities, 38 C.F.R. Part 4. That diagnostic code provision provides that slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. Moderate impairment of either knee warrants a 20 percent evaluation, and severe impairment warrants a 30 percent evaluation. 38 C.F.R. Part 4, Code 5257. Service medical records indicate that the veteran sustained a complete tear of the medial collateral ligament of the right knee while snow skiing as a part of his company's winter-weather training in March 1982. An internal repair of the torn ligament was performed that same month. In December 1991, the veteran underwent arthroscopic shaving of the right knee. Upon follow-up that same month, the wound was noted to be healing well, the sutures were removed, there was no effusion and right knee range of motion was 5 to 105 degrees. In January, another follow-up was conducted. The right knee looked "good," he had mild effusion, and his pain was improved. The veteran again underwent right knee arthroscopy in October 1993. Upon follow-up that same month, the wound was noted to be healed and the sutures were removed. It was noted that he could return to work on November 1, 1993. A VA examination was conducted in March 1994. The veteran complained of recurrent popping, grinding, swelling, numbness, pain and stiffness. He stated that he was unable to run, squat, kneel, ride a bicycle or climb stairs. He also stated that he limped to the right with prolonged walking. Examination of the right knee revealed no subluxation, lateral instability, non union, malunion, loose motion, discoloration or edema. It was also reported that there was no swelling. In addition, decreased sensation to pin and light touch and degenerative changes with deformity were noted. Right knee range of motion was flexion to 120 degrees and extension to zero degrees. An x-ray evaluation revealed moderately advanced degenerative changes. The examiner stated that the continued decreased range of motion is profound and will eventually lead to total right knee replacement. In light of the absence of any evidence of recurrent subluxation or locking of the right knee and the slight limitation of the range of motion of the knee, severe impairment of the knee has not been demonstrated and therefore, a 30 percent evaluation is not warranted under Diagnostic Code 5257. The Board has considered the possible application of other Diagnostic Codes and does not find any other Diagnostic Code that can be applied to grant the veteran a higher, 30 percent, rating. 38 C.F.R. § 4.21 (1993). The examiner, in the report of the March 1994 VA examination noted that the veteran has decreased range of motion. However to receive a 30 percent rating, flexion must be limited to 15 degrees, or extension must be limited to 20 degrees. Diagnostic Codes 5261, 5260. The veteran does not demonstrate such limitation of motion. On the examination report of December 1991, the extension of the knee was reported as 5 degrees, and according the report of the examination of March 1994, extension was to 0 degrees, which is normal extension, as defined in 38 C.F.R. § 4.71, Plate II. Similarly, the flexion of the right knee was noted in those examination reports as 105 degrees and 120 degrees. The veteran clearly has degenerative joint disease established by x-ray findings under Diagnostic Code 5003. However, degenerative arthritis is rated according to the limitation of motion of the knee and, as stated above, the veteran would not receive a higher evaluation. Diagnostic Code 5256 is inapplicable because there is no evidence in the record that the veteran's right knee is ankylosed. Under 38 C.F.R. § 4.40 (1993), functional loss of part of the body due to pain is also considered a disability. Functional loss is the inability to perform normal working movements, and must be supported by adequate pathology and evidenced by the visible behavior of the veteran. In this case, the veteran stated that he experiences pain in the knee. However, in view of the objective findings on the recent examination of no subluxation or instability and no swelling, the 20 percent rating now assigned adequately compensates the veteran for the degree of limitation of motion, pain, and other manifestations shown to be present. The Board has also considered whether the veteran is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1993). That regulation permits the application of an extraschedular rating in exceptional cases where the schedular ratings do not adequately represent the disability picture. However, the schedular ratings in this case do adequately represent the disability picture. That is, the disability does not require frequent periods of hospitalization nor does it present marked interference with employment. 38 C.F.R. § 3.321(b)(1) (1993). ORDER The appeal is denied. G. H. SHUFELT 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.