BVA9506350 DOCKET NO. 93-12 618 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to an evaluation in excess of 30 percent for the postoperative residuals of a right total knee replacement. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active wartime service from March 1944 to June 1946. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a June 1992 rating decision of the North Little Rock, Arkansas, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which confirmed an evaluation of 30 percent for the appellant's service-connected right knee replacement residuals. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to an evaluation in excess of 30 percent for his right knee disability. He argues that he currently suffers from increased pain, instability and weakness in that knee, which in his opinion, warrants at least a 60 percent evaluation for such disability. 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 appellant'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 an evaluation in excess of 30 percent for a right knee disability. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. The appellant's right knee disability, classified as a total right knee replacement, is currently manifested by subjective complaints of increased instability and pain. Examination revealed a prosthesis in good position, flexion to 155 degrees, some slight right thigh atrophy, and some generalized laxity of the knee when compared to the left. 3. There is no objective clinical evidence of severe weakness or pain on motion of the right knee; there is no clinical evidence of ankylosis of the right knee; extension of that knee is not limited to at least 30 degrees; nonunion of the tibia and fibula with loose motion requiring a brace has not been shown. 4. The appellant's right knee disability is not productive chronic severe residuals. Such knee disability produces no more than moderate overall knee impairment. 5. The appellant's right knee disability does not present such an unusual disability picture as to render application of the regular rating schedule provisions impractical. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for a right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.50, 4.59, 4.71, Plate II, 4.71a, 4.118, Part 4, Diagnostic Codes (DC) 5055, 5256, 5261, 5262 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we find that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. §5107(a) (West 1991), in that he has presented a claim which is plausible. This being so, we must examine the record to determine whether the VA has a further obligation to assist in the development of facts pertinent to his claim. 38 U.S.C.A. §5107(a) (West 1991). The evidentiary record contains relevant service medical records as well as a June 1992 VA general medical examination and a December 1992 VA orthopedic examination with accompanying x-ray. The record also contains a February 1993 VA surgical examination which was conducted as part of another claim. That examination was not considered by the RO in evaluating this claim. It is, in pertinent part, similar to the aforementioned examinations, all of which adequately detail the history of the appellant's in- service right knee injury, subsequent surgery and continued treatment. Additionally, the veteran's representative makes mention of the examination in a written argument in support of the current claim. For these reasons, the Board concludes that no prejudice will accrue to the veteran by progressing with this claim and there is no reason to remand the case for the RO to consider that examination in association with this claim. That examination formed the basis of a grant of service connection for muscle damage to the right leg, and a 10 percent rating was assigned. We are satisfied, therefore, that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case with instructions to provide additional assistance to the appellant, as the medical reports of record provide a complete history of such right knee disability, particularly as it affects the ordinary conditions of daily life, as required by provisions of 38 C.F.R. §§ 4.1, 4.2, 4.10 and other applicable provisions. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1994); Gilbert v. Derwinski 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1994). Separate diagnostic codes identify the various disabilities. However, rating the same disability under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (1994). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1994). In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant, as well as the entire history of the appellant's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The record reflects that the appellant's current right knee disability is a residual of a through and through shell fragment wound to the right knee resulting in a compound comminuted incomplete fracture of the right tibia. Relevant post-service medical records include the report of surgery conducted in 1991, a total right knee replacement. Prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. Thereafter, with chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent evaluation is warranted. With intermediate degrees of residual weakness, pain, or limitation of motion, rating by analogy to such symptomatology is made under DC 5256, 5261 or 5262. The minimum rating is 30 percent disabling. 38 C.F.R. § 4.71a, DC 5055 (1994). Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees, warrants a 30 percent evaluation; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent evaluation; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent evaluation; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent evaluation. 38 C.F.R. Part 4, DC 5256 (1994). Relevant evaluations for limitation of extension of the knee are assigned as follows: extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. Part 4, DC 5261 (1994). Normal range of motion of a knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (1994). Impairment of the tibia and fibula manifested by malunion with marked knee or ankle disability warrants a 30 percent evaluation; nonunion with loose motion requiring a brace warrants a 40 percent evaluation. 38 C.F.R. Part 4, DC 5262 (1994). Service medical records indicate the appellant incurred a severe, through and through shell fragment wound to the right knee in December 1944, resulting in a compound comminuted fracture of the lateral articular surface of the right tibia. The shell fragment entered the medial side of the right leg below the knee, and exited the lateral side of the right leg below the knee. Following debridement and closure of the wound, the appellant was transferred to England, where two additional closures of such wound site were performed. Service records further indicated extended convalescent care with improvements in stability and motion of the right knee, but with the subsequent development of traumatic osteoarthritis in that knee. By a rating decision dated in June 1946, service connection was granted for false union of the right tibia, by analogy, as a residual of a symptomatic right tibia fracture with scar, and a 10 percent evaluation assigned thereto. Such 10 percent evaluation was confirmed in rating decisions dated in February 1947, May 1949, and August 1988. Following a December 1988 VA orthopedic examination, an evaluation of 20 percent was assigned for residuals of a right patella fracture with scar and traumatic arthritis in a July 1989 rating decision. Subsequently, received were VA inpatient treatment reports indicating arthroscopic surgery of the right knee in February 1990, as well as an April 1991 cemented total right knee arthroplasty. By a rating decision dated in June 1991, evaluations for the appellant's right knee replacement were assigned as follows: 100 percent from April 1991 pursuant to 38 C.F.R. § 4.30; 100 percent from July 1991 through June 1992; and 30 percent from July 1, 1992 with a routine future examination scheduled to determine the proper evaluation at that time. See Rossiello v. Principi, 3 Vet.App. 430 (1992). That examination was conducted in June 1992. The knees had the same circumference, there was motion from 0 to 120 degrees, and the knee was reported to be stable. There was no pain on manipulation and motor strength was equal to the left. Following a June 1992 VA examination the 30 percent evaluation was confirmed in a June 1992 rating decision. The appellant expressed disagreement with such decision the following month. During a November 1992 personal hearing, the appellant testified that he currently suffers from increased weakness, swelling and instability in his right knee upon exertion. In addition, he stated that there is a recurrent "clicking" in that knee upon movement. He further testified that despite pain medication taken five times a day, he continues to suffer from pain described as a "6 or 7" on a scale from 1 to 10. Finally, he stated that he is unable to squat, or walk without the use of cane due to pain and instability, and has fallen on several occasions. Subsequently, during a December 1992 VA orthopedic examination, the appellant reported a history of the in-service gunshot wound to the right knee, with no post-service medical treatment until 1990. At that time, he reported 1990 arthroscopic surgery and a 1991 total right knee replacement. Since that time, he reported pain and swelling of the right knee, as well an increased difficulty in ambulating. Upon examination, the orthopedic examiner indicated the appellant walked with a slight limp on the right, and used a cane. The right knee was found to have no effusion, with well-healed anterior and lateral incisional scars over the proximal tibia laterally, with some slight adherence of the proximal portion of the scar laterally to the underlying tissue. The examiner further indicated some generalized laxity of the right knee, as well as slight atrophy. Objective range of motion studies were from 0 degrees extension to 115 degrees flexion, with no complaints or findings of pain reported. Accompanying x-ray indicated a total knee arthroplasty in excellent position, as well as a femoral, tibial and patella replacement, with no other bony pathology noted. Pursuant to an additional claim, a February 1993 VA surgical examination was conducted. As noted, this examination contains essentially similar pertinent findings with reference to the right knee replacement. The "clicking" sound reported by the veteran was noted, as was slight instability. There was slight limitation of full extension (5 degrees). Following this examination, service connection was granted for muscle damage to the right leg, and a separate 10 percent rating was assigned. Upon review of the record, there is simply no objective clinical evidence to support an evaluation in excess of 30 percent for the appellant's current right knee disability. The objective clinical evidence of record clearly indicated mild instability of the right knee, and there are no complaints or findings of pain upon motion during the two recent VA examinations. Therefore, the criteria for a 60 percent evaluation under DC 5055, requiring chronic residuals of severe pain on motion and weakness, are not met. Pursuant to that code, evaluation by analogy under DC 5256, 5261, and 5262 for intermediate degrees of associated residuals must then be considered. However, there is no objective evidence of ankylosis, limited extension to 30 degrees, or any other functional impairment in the right knee to support an evaluation greater than 30 percent under DC 5256 or 5261. Additionally, there is no clinical evidence of nonunion of the tibia and fibula with loose motion, nor any objective evidence that the appellant has been prescribed a knee brace in order to warrant an evaluation greater than 30 percent under DC 5262. In fact, recent x-ray evidence indicated the appellant's right knee prosthesis was in excellent position, and the appellant reportedly requires only a cane for stability. While the appellant reported a "clicking" sound in his right knee indicating possible slipping of the prosthetic joint, such symptomatology is not a basis for an increased evaluation under above mentioned diagnostic codes, and has been taken into consideration as it relates to functional impairment of that knee. Furthermore, slipping of the joint has not been shown. The Board concludes that the appellant's right knee symptomatology more nearly approximates the criteria indicative of a 30 percent evaluation under DC 5055-5262 indicating no more than moderate overall knee impairment, and therefore, that evaluation is continued. 38 C.F.R. § 4.7 (1994). Consideration has also been given to the testimony concerning complaints of pain. The current evaluation contemplates some complaints of pain. As noted, significant pain was not shown at recent examinations. There is, therefore, no basis for a higher rating based on the hearing testimony. Finally, there is no evidence of record of significant or marked interference with daily activities beyond that contemplated by the current schedular provisions, or frequent hospitalizations attributable to the appellant's right knee disability to warrant an extraschedular evaluation in excess of 30 percent. The evidentiary record reflects that the appellant is retired, and has not been hospitalized recently due to his service-connected knee disorder. Thus, the Board does not find that this is such an unusual or exceptional disability picture as to render the provisions of the rating schedule inadequate, and therefore warrant an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1994). Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Entitlement to an evaluation in excess of 30 percent for the appellant's postoperative residuals of a right total knee replacement is denied. MICHAEL D. LYON 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.