BVA9504827 DOCKET NO. 89-09 039 ) 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 residuals of a total left knee replacement (TLKR), currently rated as 30 percent disabling. ATTORNEY FOR THE BOARD R. K. Erkenbrack, Counsel INTRODUCTION The veteran served on active duty from August 1959 to March 1963 and from February 1964 to March 1967. This appeal arises from a rating decision in December 1988 of the Department of Veterans Affairs (VA) Regional Office (RO) at Cleveland, Ohio. The veteran represents himself, pro se. The issue of entitlement to service connection for a right knee disorder both directly and as secondary to service-connected TLKR had been denied by the Board of Veterans' Appeals in January 1988. By decision in June 1989, the Board of Veterans' Appeals denied the increased rating claim for TLKR. No mention was made of the right knee disorder. The veteran appealed that decision to the United States Court of Veterans Appeals (Court). [citation redacted], the Court ruled that the Board should have considered the issue of secondary service connection for the right knee disorder, without mentioning the Board's January 1988 decision on that issue. Problems were also found with respect to the evidence on the TLKR issue. It was held that the Board had not responded to/considered all the pertinent evidence of the TLKR disability in rendering its decision. The question of full consideration under 38 C.F.R. § 4.71(a), Diagnostic Code 5055 and 5262 (1989) was raised by the Court, with regard to alleged TLKR pain and the necessity for a brace potentially qualifying for an increased rating beyond 30 percent. Accordingly, the Board's June 1989 decision was vacated and remanded and further consideration was ordered. In March 1991, the Board remanded the case on the issues of an increased rating for TLKR and secondary service connection for the right knee disorder. The RO was to conduct a complete VA orthopedic examination of both knees and readjudicate the issues in compliance with the Court's holdings in [citation redacted]. In July 1992, the case was again remanded by the Board for complete review of the records by a VA orthopedist and opinion on whether the service-connected TLKR caused traumatic arthritis of the right knee. There was, among other things, a problem with an unsolicited and unintelligible comment in the examination report of a June 1991 VA orthopedic examination. In February 1994, the Board granted secondary service connection for the right knee disability. Based on additional evidence, the appeal was expanded to include the issue of entitlement to a total rating for compensation purposes based on individual unemployability (TRIU). The Board remanded the appeal on the issues regarding an increased rating for residuals of a TLKR and TRIU for a VA orthopedic examination and a social and industrial survey to assess the effect of the bilateral knee disability on the veteran's industrial impairment. By rating action in August 1994, TRIU was granted. The case was returned to the Board on the TLKR issue, the sole issue remaining. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that the prosthesis for the TLKR has loosened and he has had to wear a knee brace. He asserts that the brace extends from his mid-thigh to mid-calf and restricts him in his daily activities. He relates that the purpose of the brace is to assist in walking and prevent further damage to the knee. He refers to surgery he had to have on his left knee in October 1992. He indicates having had to be on crutches for a time following this surgery. He notes significant employment handicap due to the TLKR. He emphasizes left knee weakness, pain and the occasional need to use crutches. 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 files (2 volumes). 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 favors an increased rating of 60 percent for TLKR. FINDINGS OF FACT 1. All the evidence necessary for an equitable disposition of the veteran's appeal has been obtained by VA. 2. Due to in-service injury, the left knee joint degenerated to the point where TLKR was necessary in January 1976. 3. Subsequently, the TLKR had to be surgically repaired twice, the last time having been in October 1992. 4. Currently, TLKR is manifested by pain, left thigh muscle atrophy, limitation of flexion to about 75-80 degrees, a little hyperextension on walking rapidly, posterior sagging of the left tibia, and the wearing of a "Genu-Medi" stabilizer which has made walking more comfortable/easier. 5. The current degree of TLKR disability results in weakness in the affected left lower extremity. CONCLUSION OF LAW A rating of 60 percent for TLKR is warranted. 38 U.S.C.A. §§ 1155 and 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.71(a), Codes 5055 and 5262 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The available service medical records show that in June 1961 the veteran underwent an arthrotomy for internal derangement of the left knee, involving a tear of the medial meniscus. An operative report from a private facility reveals that a left tibial osteotomy was performed in January 1974. In early 1976 a left total knee replacement was carried out at a private facility. In October 1977 it was found that the March 1976 surgery had failed. The earlier knee prosthesis was removed and a total condylar knee replacement was done. A further revision of the left total knee replacement was carried out at a private hospital in 1985. In October 1992, the veteran was again hospitalized at a private facility. The existing left knee prosthesis had again failed and a revision of the left total knee replacement was carried out. Records of The Cleveland Clinic show that the veteran's left knee was doing well in May 1993, since changing of the polyethylene component. The knee was "quiet" and had full active extension. X-rays did not show anything specific. In September 1993, very localized lateral joint pain was indicated. It was handled easily with one Darvocet. He had full active extension with flexion limited to 80 degrees. In March 1994, he was seen for an increase in left knee pain over a 2-month period which awakened him at night. There was no swelling. The discomfort was worse on weight-bearing and localized to the tip of the tibia. Occasionally, the pain radiated to his ankle. He did not use any aid to walk. He had difficulty with steps. He walked with a satisfactory gait but seemed to have a little hyperextension of the left knee when walking rapidly. He had some mild tenderness along the anterolateral aspect of the tibia. There was no knee effusion. The tenderness seemed to be localized directly under the transverse lateral scar from previous surgery. A "Genu-Medi" knee stabilizer was put on him and he thought it felt much more comfortable walking. X-ray examination revealed no essential change since September 1993. There was slight tilting of the left patellar component laterally. There was a less than 2 millimeter lucency identified about the left medial portion of the tibial component. The impression was no evidence for loosening of TLKR. On a VA examination in April 1994, the veteran complained of constant left knee pain, soreness, tenderness, stiffness, swelling and occasional giving way, aggravation of the pain by weather changes, limited ability to walk and stand, and an inability to be up on his legs for a half hour, before he needed to rest. He reportedly wore a brace on the left knee. He was not using a cane or crutches to get around. Gait was normal. There was tenderness and soreness of the left knee. Posterior sagging of the left tibia was seen. Motion was from 0 to 75 degrees of flexion with joint line pain but with no instability. X-ray examination of the left knee was unchanged since August 1992 except for a staple inserted in the anterior proximal aspect of the tibia. The diagnosis was TLKR. II. Analysis VA has the duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1 which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition; and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory, and prognostic data required for ordinary medical classification, a description of the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.40 requires consideration of functional disability due to pain. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report and enable VA to make a more precise evaluation of the claimant's disability and of any changes in the condition. The complete evidence indicates that there were two left knee surgeries prior to the first total knee replacement in early 1976. That procedure failed and left total knee replacements/revisions were then carried out on three subsequent occasions, in 1977, 1985 and 1992. All of these surgical procedures on the left knee are in themselves compatible with severe knee disability. Left quadriceps atrophy which is compatible with weakness in the affected extremity was not described in clinical records following the October 1992 surgery. However, it was described on VA examination in November 1988, in records from the Cleveland Clinic in 1990, and on VA examination in August 1992. There was severe pain in the left knee leading up to the October 1992 surgery. Since that time the pain appears to be less than severe, but there is evidence of weakness in the extremity and we believe that some degree of quadriceps atrophy is still present. All of this warrants a 60 percent rating under Code 5055. The maximum rating under Code 5262 is only 40 percent, and so it is to the veteran's advantage that the rating be formulated under Code 5055. A 100 percent rating under Code 5055 is not warranted because it has been more than one year following implantation of the prosthesis. The rating potentially could be advanced extraschedularly, on the basis of an unusual or exceptional disability picture, with marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular criteria. While it is obvious that the effect on the veteran's employment from TLKR has figured in the grant of a TRIU, the particular manifestations of this disability alone are not shown to be unusual or exceptional with such effects and treatment that make it fall outside the rating criteria contemplated in the regular schedular standards. An extraschedular increase in the rating is not shown to be appropriate under the facts here. 38 C.F.R. § 3.321(b) (1994). ORDER An increased rating for a left total knee replacement is granted, subject to the governing laws and regulations applicable to the payment of monetary benefits. BRUCE E. HYMAN 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.