BVA9502914 DOCKET NO. 92-05 823 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased (compensable) rating for chondromalacia of the right knee. 2. Entitlement to an increased rating for chondromalacia of the left knee, currently evaluated as 30 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from October 1969 to January 1990. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 1991 rating decision from the Togus, Maine, Regional Office (TRO) of the Department of Veterans Affairs (VA). In that rating decision the RO, among other things, granted service connection for chondromalacia of the left knee (left knee disorder) and assigned a noncompensable evaluation. The veteran testified at a RO hearing in August 1991. After considering the testimony and medical records submitted by the veteran, the hearing officer entered a favorable decision in November 1991. In December 1991, the RO implemented the hearing officer's decision and granted a 30 percent rating for left knee disorder and service connection for chondromalacia of the right knee (right knee disorder) with an assigned noncompensable evaluation. The case was remanded by the Board for further development in June 1993. Following completion of the development a rating determination in August 1994 was made and a supplemental statement of the case was furnished by the Denver, Colorado, Regional Office (DRO). CONTENTIONS OF APPELLANT ON APPEAL The veteran and her representative contend, in essence, that the RO committed error in not granting increased ratings for the right and left knee disorders and in not granting a total disability rating based on unemployability. Specifically, the veteran asserts that her left knee is unstable, painful, prone to swelling, and has decreased range of motion. She claims that her right knee causes instability and pain, especially when walking up and down stairs. The representative argues that the veteran is entitled to an extraschedular rating for her left knee disorder and entitled to a total disability rating based on 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(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 preponderance of the evidence supports a 50 percent rating, and not in excess thereof, for the veteran's left knee disorder, a 10 percent rating, and not in excess thereof, for her right knee disorder, and a total evaluation based on individual unemployability. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's right knee disorder is primarily manifested by subjective complaints of pain, mild limitation in motion and function and discomfort. 3. The veteran's service-connected right knee disorder results in no more than slight impairment of the right knee. 4. The veteran's left knee disorder is primarily manifested by severe impairment which includes severe limitation of motion, instability, and osteoarthritic changes. 5. The veteran's left knee disorder results in symptomatology which is equivalent to limitation of extension to 45 degrees. 6. The veteran's left knee disability presents an exceptional or unusual disability picture rendering impractical the application of the regular schedular standards. 7. Service connection is in effect for left knee disorder, hereinafter evaluated as 50 percent disabling, chronic episodic gastritis, evaluated as 10 percent disabling, mechanical low back pain, evaluated as 10 percent disabling, right knee disorder, hereinafter evaluated as 10 percent disabling, and for residuals of fractured right great toe, recurrent mild cephalalgia, right cheek scar, postoperative lymphoma with removal right scapula, each evaluated as noncompensable. 8. The veteran's service-connected left and right knee disabilities prevent her from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The schedular criteria for a 10 percent rating, and not in excess thereof, for chondromalacia of the right knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, §§ 4.7, 4.71a, including Code 5257 (1994). 2. The schedular criteria for a 50 percent rating, and not in excess thereof, for chondromalacia of the left knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, § 4.71a, including Codes 5257, 5261 (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, she 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. Right Knee Disorder Service medical records indicate that the veteran complained of bilateral knee pain in May 1987. She reported a 3 month history of increased pain, especially when going up stairs. The examiner reported normal range of motion, no ligament instability, moderate crepitus, and minimum swelling. In November 1988 the veteran complained of bilateral knee pain. The examiner's diagnosis was bilateral chronic knee pain. Following service the veteran was accorded a VA examination in March 1990. She complained of weak knees with the right knee bothering her more than the left knee. The examiner reported no effusion, no significant crepitus, and full range of motion in both knees. He noted that the veteran's knees were tender. X- rays of the knees were normal. The examiner's diagnosis included no evidence of significant joint disease. In a May 1990 rating decision the TRO denied, among other things, entitlement to service connection for right knee disorder. The veteran was accorded a VA examination in May 1991. Although the examination was predominately for the left knee disorder, the examiner noted that the veteran had considerable crepitus in the right knee. At an August 1991 TRO hearing, the veteran complained of pain, swelling, and grinding in the right knee. The hearing officer entered a favorable decision regarding the right knee disorder in November 1991. In a December 1991 rating decision the TRO implemented the hearing officer's decision and granted entitlement to service connection for right knee disorder, and assigned a noncompensable disability evaluation. In June 1993 the Board remanded the case for further development, including an updated VA orthopedic examination to determine the nature and severity of the veteran's service-connected right knee disorder. During the January VA 1994 examination the veteran complained of right knee pain when walking up and down stairs and swelling of the right knee twice a week. She indicated that her right knee hurts about 5 percent of the time and does not give way or lock. The examiner reported that the veteran's limitations were similar for the right knee as they were for the left knee, in that walking more than 20 minutes, going up and down stairs, or sitting will bother the knees. She reported that the veteran was able to kneel for about one minute, but had difficulty squatting. Range of motion studies of the right knee were 0 to 130 degrees. The examiner reported joint line tenderness over the right knee, but that the right knee was stable with no effusion, warmth, or erythema. X-rays of the right knee were normal. The final diagnosis included mild chondromalacia without limitation in motion, but with mild limitation in function and discomfort. Based upon the VA examination findings, the DRO, in an August 1994 rating decision denied an increased (compensable) rating for the right knee disorder and continued the noncompensable rating under Diagnostic Code 5257 of the Schedule for Rating Disabilities, 38 C.F.R. Part 4, § 4.71a (1994). 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. Separate diagnostic codes identify the various disabilities. A 10 percent rating under Diagnostic Code 5257 contemplates slight impairment of the knee with recurrent subluxation or lateral instability. The next higher rating, 20 percent, requires moderate knee impairment with recurrent subluxation or lateral instability. It is the defined and consistently applied policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (1994). In addition, where there is question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. Part 4, § 4.7 (1994). In determining whether a higher rating is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In weighing the evidence of record in this case, the Board considered the service medical records, VA examination reports, as well as all of the evidence of record, in light of the veteran's contentions. The findings in the right knee included limitation of motion, mild limitation in function, discomfort, occasional swelling, and crepitus. These medical findings, along with the veteran's credible history of right knee pain, support the veteran's claim for an increased (compensable) rating to 10 percent, but not higher. It is noted that the examiner who conducted the January 1994 examination reported that the X-rays revealed a normal right knee, but that the veteran's right knee disorder caused limitation of motion and some limitations that were similar to those caused by the left knee disorder. The left knee disorder caused severe impairment. The Board finds that the veteran's current involvement consisting of limitation in motion and function of the right knee and right knee pain is consistent with the slight knee impairment contemplated by Diagnostic Code 5257. Nevertheless, there is no probative evidence which would indicate that the veteran has moderate right knee impairment which would reflect the next higher rating of 20 percent. Most of her difficulty walking, going up and down stairs, and sitting has been attributed to the left knee and cannot be considered in this rating. The Board, after considering the reported findings of the VA examiners, in light of the veteran's contentions, finds that the evidence presents a disability picture that more nearly approximates a rating of 10 percent under Diagnostic Code 5257. In any event by virtue of the benefit of the doubt doctrine, the law dictates that the veteran should win. Therefore, we find that the veteran should be granted an increased rating. Accordingly, an increased (compensable) rating for chondromalacia of the right knee not higher than 10 percent is warranted. The regular schedular standards are shown to be adequate to compensate the veteran's disability. This is not an exceptional case where the regular schedular standards are shown to be inadequate. It does not present 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). II. Left Knee Disorder As previously noted, service medical records indicate that the veteran complained of bilateral knee pain on several occasions. He was diagnosed as having chronic knee pain. On the March 1990 VA examination the examiner reported no effusion, no significant crepitus, and full range of motion in both knees. He noted that the veteran's knees were tender. X- rays of the knees were normal. The examiner's diagnosis included no evidence of significant joint disease. In the May 1990 rating decision the TRO denied, among other things, entitlement to service connection for left knee disorder. In December 1990 the veteran submitted a private operative report from William Y. Oh, M.D. The report indicated that the veteran underwent a total left knee reconstruction in May 1990. The preoperative diagnosis was torn anterior cruciate ligament and torn medial collateral ligament of the left knee. The postoperative diagnosis was torn lateral meniscus, torn anterior cruciate ligament, torn medial collateral ligament, torn posterior capsule, and partial tear of the left patella tendon. The physician noted that severe chondromalacia was present on the left patella from a pre-existing condition. In June 1990 the veteran was discharged from the hospital and was instructed to continue convalescence at home. Based upon the service medical record findings and private and VA examination reports, the TRO, in a January 1991 rating decision granted service connection for chondromalacia of the left knee and assigned a noncompensable rating under Diagnostic Code 5257 of the Schedule for Rating Disabilities, 38 C.F.R. Part 4, § 4.71a (1994). The noncompensable evaluation was thereafter continued until December 1991, at which time the TRO implemented the RO hearing officer's August 1991 favorable decision and assigned a 30 percent disability rating for the left knee disorder. That decision was based primarily on private medical reports dated between January and August 1991 and a May 1991 VA examination report. The private medical reports from Dr. Timothy R. Howe, M.D. showed that the veteran had crepitation with flexion and extension of the left knee. Dr. Howe noted that the veteran could flex to approximately 90 percent, after which she experienced considerable pain. He indicated that the veteran had chronic knee pain secondary to trauma and that it was unlikely that she would ever regain full use of her left knee. On the May 1991 VA examination report, the examiner reported, among other things, that the veteran's left knee was warm to touch, tender and had a small effusion present. Range of motion studies revealed flexion to 100 degrees and extension missing the last 5 degrees on the left. He reported mild laxity and considerable crepitus. The examiner noted that the veteran could not walk 1/8 mile or stand in place for more than 5 minutes. He reported that with those limitations the veteran could not be gainfully employed. The examiner's diagnosis included massive internal derangement of the left knee. As previously noted, in June 1993 the Board remanded the case for further development, including an updated VA orthopedic examination to determine the nature and severity of the veteran's service-connected left knee disorder. On the January 1994 VA examination the veteran complained of decreased range of motion and pain so severe that it kept her awake at nights. She also complained that the left knee "gave way" causing her to fall and seemed to be always swollen. The examiner reported that the veteran had difficulty with climbing stairs and with prolonged walking and standing. She noted that the veteran had tenderness in her left knee over the medial and lateral joints lines and just distal to the patella anteriorly. She noted that the veteran's left knee had no effusion, warmth, erythema and was stable with a normal Mcmurray test. The veteran was able to squat 70 degrees flexion of the knee before pain began. She noted that the motion of the knee did not appear limited by pain, but that range of motion on the left knee was 0 to 95 degrees. Straight leg raising was negative to 90 degrees. X-rays of the left knee revealed osteoarthritis of the left knee. The final diagnosis included pre-existing chondromalacia with trauma and extensive surgery with discomfort and limitations in motion and function. Based upon the VA examination findings, the DRO, in an August 1994 rating decision denied an increased rating for the left knee disorder and continued the 30 percent rating under Diagnostic Code 5257 of the Schedule for Rating Disabilities, 38 C.F.R. Part 4, § 4.71a (1994). 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. Separate diagnostic codes identify the various disabilities. The current 30 percent rating is the highest assignable rate under Code 5257. It contemplates severe impairment of either knee, including recurrent subluxation or lateral instability. 38 C.F.R. Part 4, § 4.71a, Code 5257 (1994). The next higher rating, 40 percent requires ankylosis (bony fixation) with the knee fixed in flexion at an angle between 10 degrees and 20 degrees or nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. Part 4, § 4.71a, Codes 5256, 5262 (1994). A 50 percent rating could be assigned if there is limitation of extension (straightening) of the leg to 45 degrees from the straight leg position. 38 C.F.R. Part 4, § 4.71a, Code 5261 (1994). Review of the entire file does not disclose any ankylosis (bony fixation) or nonunion of the tibia and fibula bones; and ankylosis or nonunion was not demonstrated on the recent X-ray studies. However, the file does disclose an overall left knee disorder of such impairment that it more nearly approximates a 50 percent rating equivalent to limitation of extension to 45 degrees. Under 38 C.F.R. § 3.321(b)(1) (1994), an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability is warranted if 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. The Board notes that the veteran underwent major reconstructive surgery on the left knee in May 1990. In addition, on the May 1991 VA examination report the examiner reported that the veteran had severe symptoms associated with the left knee disorder, including chondromalacia, generalized left knee pain, limited range of motion, and considerable crepitus. He noted that the veteran could not walk 1/8 mile or stand in place for more than 5 minutes. He concluded that the veteran's left knee disorder caused her not to be gainfully employed and that treatment consisted of a Lennox-Hill brace and follow-up at Parkview Memorial Hospital. Moreover, as noted by the examiner on the January 1994 VA examination report, the veteran had extensive surgery with discomfort and limitation in motion and function. In weighing the evidence of record pertaining to the veteran's left knee disorder, the Board considered the available VA examination and private medical reports, and a transcript of the hearing testimony, in light of the veteran's contentions. The medical findings show that the veteran had been hospitalized for extensive left knee reconstruction, continues to receive treatment at Parkview Memorial Hospital, and according to VA doctors unable to be gainfully employed. This level of impairment must be associated with a higher rating of 50 percent, the equivalent to limitation of extension to 45 degrees. The regular schedular standards are not shown to be adequate to compensate the veteran's disability. This is an exceptional case where the regular schedular standards are shown to be inadequate. It presents 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). Accordingly, a 50 percent rating for the left knee disorder is warranted. III. Total Disability Rating Based on Individual Unemployability The veteran is service-connected for left knee disorder chronic episodic gastritis, mechanical low back pain, right knee disorder, residuals of fractured right great toe, recurrent mild cephalalgia, right cheek scar, and postoperative lymphoma with removal right scapula. The veteran is receiving a 50 percent disability evaluation for is service-connected left knee disorder. Other service-connected disabilities are receiving a 10 percent disabling rating or noncompensable evaluation. The extent of impairment from the left and right knee disorders is discussed above. She avers that she can not obtain employment because of symptomatology associated with her bilateral knee disorders. 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 a service-connected disability; provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities of one or both lower extremities should be considered as one disability. 38 C.F.R. Part 4, § 4.16 (1994). Accordingly, the Board will consider the veteran's left and right knee disorders as one disorder. In this case, the combined rating of 50 percent for the left knee and 10 percent for the right knee including the bilateral factor following the Board's grant of increased ratings for left and right knee disorders is 60 percent and is equivalent to a single disability. As the veteran's bilateral knee disorder is rated at 60 percent, the veteran meets the percentage standards set forth above. 38 C.F.R. Part 4, § 4.26 (1994). The record contains an August 1991 report from Dr. Timothy R. Howe, M.D. which stated that the veteran had chronic knee pain secondary to trauma and it was unlikely that she would ever regain full use of her left knee. On the veteran's application for increased compensation based on unemployability she indicated that she completed high school, that her education and/or training included medical specialist. She reported that she last worked in 1990. She noted that she could not stand all day on her feet or sit all day. On the interview for the social and industrial survey conducted in August 1993 the veteran stated that she has difficulty doing housework, climbing stairs, and ambulating for any distance. The examiner noted that the veteran was independent in the basic ADL's but felt frustrated because she was unable to be more active. The veteran complained of chronic pain which affected her social life as well as the basic ADL's. The veteran's companion noted that the veteran occasionally went fishing and assisted with the housework. The interviewer indicated that the veteran was involved in the VA Rehabilitation Program and her educational goal was to attend electronics school. He noted that the veteran was denied SSA benefits. On the interview for the social and industrial survey conducted in January 1994 the veteran reported that her endeavor was to develop some hobbies that she could do within her limitations, including taking classes in arts and crafts. The interviewer noted that the veteran retired from the service in 1990 and had attempted to work and actually worked for a short period of time. However, he noted that even though the work was not physically strenuous, the veteran was unable to do work because she could neither stand or sit for long periods of time. The veteran told the interviewer that she began vocational retraining. The interviewer's overall impression was that the veteran was friendly, congenial, sociable, and cooperative. He noted that she was oriented times three, seemed knowledgeable of her life experiences, exhibited a good memory and recall. He further noted that the veteran had seemingly no difficulty in relating her life experiences or talking about herself. He indicated that overall she was quite pleasant to deal with. The representative contends that the veteran is currently taking vocational rehabilitation classes, and as such, is unemployable. After careful consideration of the evidence, the Board agrees with the veteran's representative that the veteran is currently unemployable. However, that may change after the veteran finishes her vocational rehabilitation training. Therefore, after the veteran completes her vocational training, the RO must readjudicate the issue of entitlement a total disability rating based on individual unemployability The Board is aware that the veteran applied for Social Security benefits and was determined not to be disabled under the criteria of the Social Security Administration. However, the Board finds, for the reasons discussed above, that the service-connected bilateral knee disorder presents a picture of such magnitude as to prevent the veteran from currently working at some type of job, compatible with her education and occupational experiences. The Board concludes that the veteran is not capable of pursuing some form of substantially gainful employment. Accordingly, the veteran is entitled to total disability rating. ORDER 1. Entitlement to an increased evaluation of 10 percent, but not higher, for chondromalacia of the right knee is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. 2. Entitlement to an increased evaluation of 50 percent, but not higher, for chondromalacia of the left knee is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. 3. Entitlement to a total disability rating based on individual unemployability is granted. 4. As noted the veteran is taking vocational rehabilitation classes at the VA. Once the veteran has completed her training, the RO must again review the issue of entitlement to a total disability rating based on individual unemployability. 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.