BVA9500224 DOCKET NO. 93-11 714 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Entitlement to an increased rating for the residuals of a left knee injury, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Robert B. Swanson, Associate Counsel INTRODUCTION The veteran had active service from September 1983 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California. The Board is cognizant of the veteran's claim, which he submitted in May 1991, for extension of a temporary total rating based on convalescence following hospitalization, which included surgery, in December 1990. Since the claim was not adjudicated by the RO and certified for appeal, it is not in appellate status but is referred to the RO for the appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that an increased rating for his left knee injury residuals is warranted due to a recent increase in the severity of the 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 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 evidence warrants an increased rating of 30 percent for the veteran's left knee injury residuals. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The current left knee injury residuals more nearly approximate the severe level of knee inpairment. CONCLUSION OF LAW The criteria for 30 percent rating for the residuals of a left knee injury have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking an increased rating for his left knee injury residuals. He has presented a well-grounded claim, which is a claim that is plausible, as required by 38 U.S.C.A. § 5107(a) (West 1991). The VA, in turn, has assisted the veteran in fully developing the facts relevant to his claim as required by 38 U.S.C.A. § 5107(a). The veteran contends that an increased rating is warranted based upon his current left knee symptomatology, which includes pain, difficulty with weight bearing, instability, and grinding and popping. According to the veteran's service medical records, he was hospitalized at a service medical facility for about eight days in September 1984 for treatment of an injury to his left knee, which he reportedly sustained while playing football. While hospitalized, a left anterior cruciate ligament reconstruction and a left iliotibial tract reattachment were performed. After his discharge from the hospital, he received periodic outpatient treatment at service medical facilities for a symptomatic knee. In July 1985, he was separated from service due to a physical disability. In November 1985, a VA general medical examination was conducted. The findings included some atrophy of the left thigh, tenderness alone the lateral joint line, and a positive anterior drawer sign indicative of mild to moderate laxity of the anterior cruciate ligament. In October 1985, the RO granted service connection for the veteran's left knee injury residuals, and assigned a noncompensable evaluation. Following the rating action, the veteran received periodic VA and private outpatient treatment for a symptomatic left knee. In July 1990, the RO granted an increased rating of 10 percent for the veteran's left knee injury residuals, effective from May 1990. Following the rating action, he received periodic VA outpatient treatment for his left knee. In December 1990, he was hospitalized at a VA medical facility for about five days for a left knee anterior cruciate ligament reconstruction, as the earlier reconstruction had failed, as well as debridement of the left medial meniscus. Following his hospitalization, he received intermittent VA outpatient treatment. In March 1991, the RO granted an increased rating of 20 percent effective from August 1990, a temporary total rating based on hospitalization and convalescence effective from December 1990, and a 20 percent rating effective from February 1991. Following the rating action, he received periodic VA outpatient treatment for his left knee. In April 1992, a special VA orthopedic examination of the veteran's left knee was conducted. During the examination, the veteran complained of left knee pain. The examiner found that the veteran walked with a limp. Reportedly, there had been a recurrence of knee pain (without verifiable physical signs) about 5 months after the December 1990 surgery. By the 9th month after surgery, the continued pain was objectively manifested with physical signs noted by the orthopedist, including laxity, clicking, grinding and minor swelling. The circumference of the right thigh was 20 5/8 inches, and the circumference of the left thigh was 19 1/2 inches. Range of motion testing revealed flexion to 140 degrees, and extension to within 5 degrees of full extension. Additional findings included surgical scars, inferior patellar swelling, crepitus on motion, movement in the anterior posterior plateau, and a +1 positive drawer sign. X-rays revealed a torn anterior cruciate ligament, buckling of the posterior cruciate ligament, horizontal and vertical tears of the posterior horn of the medial meniscus, and small osteophytes along the posterior aspect of the patella. The lateral meniscus was intact. In September 1992, the veteran received VA outpatient treatment. He complained of medial joint line pain, and some vague instability. He reported that he had been working on a life cycle and a treadmill. The findings included a normal gait, range of motion between zero and one hundred and thirty-five degrees, no effusion, a negative bounce home test, diffuse medial and lateral joint line tenderness upon palpation with some retropatellar tenderness, a positive Apley's distraction, no varus or valgus laxity, right thigh circumference of 49.5 centimeters, left thigh circumference of 47 centimeters, a negative Lachman's, a negative anterior drawer, a negative pivot shift, and a negative McMurray's. The impression was left knee pain with no clear etiology. Magnetic resonance imaging (MRI) of the left knee was accomplished. The findings were interpreted as showing the anterior cruciate ligament to be intact and in proper position. The posterior horn of the medial meniscus was diminutive consistent with prior surgery. The lateral meniscus was normal, but findings in the meniscus were found to raise the question of recurrent or residual tear in the posterior horn. Degenerative changes were present in the knee. In November 1992, the veteran received VA outpatient treatment. When examined, he complained of pain, and difficulty standing on an extended left knee. The findings were no effusion, and range of motion from 0 to 135 degrees with reproducible crepitus. The examiner noted that an MRI had been conducted in September 1992, and that it showed no new meniscal pathology. In January 1993, a private physician, Gary P. McCarthy, M.D., reported that he had examined the veteran's knee after the veteran complained of it giving way. He indicated that his findings revealed an obvious anterolateral rotary instability with 2+ pivot shift. He opined that given the nature of the instability, the veteran's knee without correction would rapidly go on to degenerative arthritis, and require a knee replacement. The veteran's left knee injury residuals are currently rated as 20 percent disabling. A 20 percent rating for knee impairment is assigned under the Schedule for Rating Disabilities (Schedule) when there is moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. An increased rating, that is a 30 percent rating, is assigned under the Schedule when there is severe recurrent subluxation or lateral instability. Id. The medical evidence reveals that the subjective residuals include difficulty on weight bearing due to pain. Functional loss due to pain is to be taken into account under the Schedule. 38 C.F.R. § 4.40 (1993). The veteran's complaints of pain are supported by objective clinical findings as examiners have noted that the veteran walked with a limp, and that there was atrophy of the left thigh. With respect to instability, clinical findings have shown ligament laxity and instability of the knee. While the report of the September 1992 VA examination does not reflect severe instability, the December 1992 report by Dr. McCarthy refers to obvious anterolateral rotary instability with 2+ pivot shift. Considering this factor, the apparent failure of past surgical procedures, and the X-ray and MRI findings of continued internal derangement, and degenerative changes, the Board concludes that the residuals of left knee injury more nearly approximate the criteria for a 30 percent evaluation. 38 C.F.R. § 4.7 (1993). However, the Board finds that the veteran's disability picture is not so exceptional or unusual as to warrant an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1993). The left knee disability has not caused marked interference with employment or necessitated frequent periods of hospitalization. ORDER Entitlement to an increased rating for the residuals of a left knee injury is granted subject to the controlling regulations applicable to the award of monetary benefits. JAMES R. ANTHONY 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.