BVA9504220 DOCKET NO. 91-41 746 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased rating for residuals of a left knee injury, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for hypertensive cardiovascular disease, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran served on active duty from February 1983 to March 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1989 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California which granted service connection for residuals of a left knee injury, rated as noncompensable. That decision also granted service connection for hypertensive cardiovascular disease, rated as 10 percent disabling. A June 1991 rating decision increased the rating for the service-connected left knee disability to 10 percent disabling. The case was previously before the Board in June 1992, when it was remanded to the RO for examination of the veteran. The requested action has been completed. The Board now proceeds with its review of the appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in denying his claims of entitlement to increased ratings for residuals of a left knee disability and for hypertensive cardiovascular disease. He asserts that his service-connected disabilities are more severely disabling than currently evaluated. Specifically, he states that he experiences pain, occasional swelling, crackling noises and stiffness of the left knee. He maintains that the pain increases with walking and that he has difficulty climbing stairs. With respect to his hypertension, he avers that he suffers from occasional morning headaches and occasional chest pain at night while lying down, lasting for one half hour without radiation or associated symptoms. Consequently, he contends that he is entitled to increased disability 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 the preponderance of the evidence is against the veteran's claims for entitlement to an increased rating for residuals of a left knee disability and for entitlement to an increased rating for hypertensive cardiovascular disease. 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 service-connected left knee disability is manifested by complaints of pain, occasional swelling, crackling noises and stiffness of the left knee. Objective findings consist of mild laxity of the lateral collateral ligament, moderate laxity of the medial collateral ligament and chondromalacia of the patella. 3. The veteran's left knee disability is manifested by symptoms and objective findings indicative of no more than slight impairment. 4. The veteran's service-connected hypertensive cardiovascular disease is manifested by complaints of occasional morning headaches and occasional chest pain at night while lying down, lasting for one half hour without radiation or associated symptoms. 5. The service-connected hypertensive cardiovascular disease, as demonstrated by the October 1993 VA examination, is manifested by blood pressure readings of 126/78, sitting; 122/70, supine; and 118/82, standing. The veteran takes medication for the control of his hypertension. 6. The veteran's hypertensive cardiovascular disease is not manifested by diastolic pressure predominantly 110 or more with definite symptoms. 7. The veteran's service connected disabilities do not present exceptional or unusual disability pictures rendering impracticable the application of the regular schedular standards that would have warranted referral of the case to the Director of the Compensation and Pension Service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for residuals of a left knee injury have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Code 5257 (1994). 2. The criteria for a disability rating in excess of 10 percent for hypertensive cardiovascular disease have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Code 7101 (1994). 3. Failure of the RO to consider or document its consideration of an extraschedular rating and the failure to refer the case to the Director of the Compensation and Pension Service is no more than harmless error. 38 C.F.R. § 3.321(b)(1) (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 to say that he has presented claims which are plausible. VA has assisted the veteran as much as it can in the development of his claims. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1994). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1994). The veteran's claims folder contains his service medical records, VA medical records and VA examination reports. I. Entitlement to an increased rating for residuals of a left knee injury Service medical records dated in May 1983 indicate that the veteran complained of bilateral knee pain which had persisted for one month. It was observed that he walked without a limp. On examination, there was tenderness of the lower legs and crepitation of the knees. The examiner diagnosed chondromalacia and shin splints. In May 1986, the veteran complained of a dull pain in his left knee. He stated that his knee "gave out" and that he experienced a rubbery feeling. He also reported weakness with prolonged standing. He gave a history of knee surgery in January 1985, although there is no evidence of such a surgery of record. The examiner noted some minor swelling at the front top part of the patella near a well-healed scar. A second examiner also noted that there was no palpable deformity of the knee and no tenderness to palpation. On discharge examination in March 1987, the veteran reported knee pain. Following service, the veteran underwent a VA examination in October 1988. He gave a history of injuring his left knee while lifting heavy objects during service. He reported occasional swelling and pain, although he stated that the knee did not lock or give out. Neurologic examination of his legs was within normal limits. There was no swelling, tenderness of deformity of the left knee. The examiner reported that the ligaments were intact and that he had a full range of motion. An x-ray of the left knee was normal. Significantly, the joint spaces were well- preserved, bone density was normal, and no fractures or dislocations were identified. On the basis of the findings of the October 1988 VA examination, in March 1989 the RO granted service connection for a left knee disorder and assigned a non-compensable rating. At his personal hearing in June 1990, the veteran testified that he experienced pain in his left knee when he climbed stairs and played tennis. He also reported that the knee was unstable and had given out on occasion, causing him to fall. Also of record are VA outpatient treatment notes dated from February 1989 to April 1990. Although the veteran was treated primarily for unrelated conditions, he occasionally complained of bilateral knee pain. On examination in February 1989, there were no signs of obvious deformity of the lower extremities. Significantly, Drawer's sign was negative and there was no pain with stressing of the knee ligaments. Neurological examination was normal with full motor strength and sensation intact. Similarly, on examination in August 1989 Drawer's sign was negative and it was noted that there was no pain with internal and external rotation of the knee. There was, however, moderate crepitation. Significantly, there was no joint effusion, erythema or warmth of the knee. The examiner commented that given the veteran's reports of trauma to the knees, there may be some degeneration. He suggested that he obtain an orthopedic consultation in the near future. Accordingly, the veteran was subsequently examined in December 1989. Left knee flexion was 130 degrees and extension was 180 degrees. There was no joint effusion or pain in the medial compartment with motion. McMurray's and Appley's sign were negative. There was patellofemoral pain +1 and crepitation +2. The impression was probable patellofemoral chondromalacia. On follow-up examination in January 1990, the examiner noted that there was some definite improvement with medication. X-rays revealed no evidence of degenerative joint disease. There was slight to moderate lateral tracking of the patellae. The impression was patellofemoral disease. The veteran was afforded a VA examination in January 1991. He complained of increased pain in the left knee with walking, bending, extending, sitting, squatting and prolonged standing. He indicated that he could not run. He also stated that he experienced occasional swelling and instability. Examination of the knee showed no swelling or effusion. Range of motion was normal and there was no tenderness. There was some laxity of the medial and lateral collateral ligaments. However, Drawer's sign and McMurray's sign were negative. On the basis of the foregoing evidence, in June 1991 the RO assigned a 10 percent rating for the veteran's service connected left knee condition. When there is slight recurrent subluxation or lateral instability of the knee, a 10 percent rating is assigned. To receive a 20 percent evaluation, the veteran must show moderate recurrent subluxation or lateral instability of the left knee. 38 C.F.R. Part 4, Code 5257 (1994). Where there is a 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. § 4.7 (1994). However, the veteran's recent medical treatment records for his left knee disability do not show the severity of a disability required for an evaluation in excess of 10 percent under Code 5257. Pursuant to the Board's remand in June 1992, the veteran underwent a VA examination in September 1992. Complaints included pain, occasional swelling, crackling noises and stiffness of the left knee. He stated that he took medication daily for pain relief. He also reported that the pain increased with walking and that he had difficulty ascending and descending stairs. An x-ray of the left knee was normal. In particular, there were no joint effusions and no evidence of fracture or malalignment. The medial and collateral space was preserved and the underlying bones were intact. The veteran failed to complete the examination at this time and returned in February 1993. On examination, it was noted that he walked without a limp. He could squat to approximately 75 percent of the distance and get up from the squatting position. Neurological findings were reported as normal. In August 1993, the veteran's representative submitted a statement to the effect that the veteran's VA examination was inadequate. Consequently, he was scheduled for another VA examination in October 1993. The veteran once again complained of pain on ascending and descending stairs. Significantly, he denied stiffness, locking, swelling, "giving out" or decreased range of motion of the knee. He reported that he did not wear a brace and that he took medication for pain relief. On examination, the examiner indicated that he walked without a limp. Patellae reflexes were normal. Of note, there was no mild tenderness along the medial joint line, no swelling and no deformity of the left knee. The patella was normal in position and mobility and was mildly tender. There was mild laxity of the lateral collateral ligament and moderate laxity of the medial collateral ligament. Importantly, range of motion of the knee was 140 degrees out of 140 degrees without pain or crepitus. An x-ray of the left knee was negative. The diagnosis was status left knee injury with ligament laxity and chondromalacia patellae. These findings do not demonstrate more than slight impairment of the veteran's left knee. The veteran's current 10 percent rating for a left knee disability is an accurate rating as it has not been shown to cause more than slight impairment. Despite his complaints of pain, the veteran has a full range of motion of the knee. In addition, x-ray findings have consistently been negative for any abnormality of the left knee. Although there was moderate laxity of the medial collateral ligament, there was only a mild laxity of the lateral collateral ligament. Significantly, there have been no objective findings of moderate recurrent subluxation. In fact, at his most recent VA examination the veteran denied that his knee "gave out". In concluding that the veteran is not entitled to a higher rating for his left knee disability, the Board is cognizant of his complaints of pain. Furthermore, the Board is aware of the provisions of § 4.40 which state that weakness is as important as limitation of motion, and a part which becomes painful on use might be considered seriously disabled. 38 C.F.R. Part 4, § 4.40 (1994). However, there was no pain noted with movement of the knee at the veteran's most recent VA examination. Significantly, he denied stiffness, locking, swelling, and "giving out" of the knee. Therefore, any pain that the veteran experiences is contemplated by the current evaluation. This case 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). Any failure of the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. II. Entitlement to an increased rating for hypertensive cardiovascular disease The veteran's service medical records indicate that following a five day blood pressure check in February 1987, he was diagnosed as having hypertension and was placed on medication. ` Following service, on VA examination in October 1988 the veteran reported that he had not taken any blood pressure medication since his discharge from service. He complained of occasional headaches. A chest x-ray showed his heart and mediastinum to be normal. Electrocardiogram indicated anterior S-T (segment of the electrocardiogram) elevation that may be a normal variant, and minor nonspecific inferolateral ST-T abnormality. His blood pressure reading in the right arm while sitting was 144/102. His pulse was 92 and regular. Fundoscopy revealed arteriolar narrowing. Otherwise, the cardiovascular system examination was within normal limits. On the basis of the October 1988 VA examination, in March 1989 the RO granted service connection for hypertensive cardiovascular disease, rated as 10 percent disabling. A 10 percent rating for hypertensive vascular disease (essential arterial hypertension) requires diastolic pressure predominantly 100 or more. A 20 percent evaluation is assigned when diastolic pressure is predominantly 110 or more with definite symptoms. When continuous medication is demonstrated to be necessary for control of the hypertension and there is a history of diastolic blood pressure predominantly 100 or more, a minimum rating of 10 percent will be applied. 38 C.F.R. Part 4, Code 7101 (1994). As noted above, where there is a 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. § 4.7 (1994). However, the veteran's recent medical treatment records for hypertension do not show the severity of a disability required for an evaluation in excess of 10 percent under Code 7101. In support of his claim, the veteran provided VA outpatient treatment notes dated from February 1989 to April 1990. Included were hypertension clinic notes which contained blood pressure readings as follows: 180/120 and 170/120 in February 1989; 142/110, 150/114, 120/100 and 138/104 in March 1989; 130/100 and 140/100 in April 1989; 132/84 and 128/90 in May 1989; 118/80 and 120/80 in August 1989; 140/90 and 140/100 in September 1990; and 130/80 and 140/82 in February 1990. The veteran consistently denied any cardiovascular symptoms and was treated with medication for his condition. On VA examination in January 1991, the veteran's blood pressure readings were 150/94 sitting; 148/92 recumbent; and 150/94 standing. His pulse was 72 and regular. It was noted that he continued to take medication for his condition. An electrocardiogram was normal. Pursuant to the Board's remand in June 1992, the veteran underwent a VA examination in September 1992. On examination, he reported a recent blood pressure reading of 140/100. He denied a history of coronary artery disease and any significant epistaxis. However, he did report occasional morning headaches for many years. He also reported occasional chest pain at night while lying down, lasting for one half hour without radiation or associated symptoms. His blood pressure readings were right arm, sitting, 152/94; left arm, sitting, 150/100; and right arm, recumbent, 138/94. His heart rate was 96 and respiration was 16 per minute. A fundoscopy revealed some "early" arterial narrowing, but was otherwise normal. A chest x-ray was interpreted as within normal limits. Pulses were normal. The heart had regular rate and rhythm. No murmur, rub or gallop was noted. There was no palpable posterior myocardial infarction. The examiner commented that the veteran had an early onset of hypertension, apparently at 32 years of age. It was noted that he continued to take medication for his condition. Significantly, the examiner reported that the veteran was essentially asymptomatic and that the examination was significant for no gross fundoscopic changes, no fourth heart sound and an otherwise normal cardiovascular examination. He also commented that his blood pressure was slightly elevated while sitting. Importantly, on subsequent VA examination in October 1993, the veteran indicated that he was asymptomatic and had not had a stroke or heart attack. On examination, his blood pressure readings were as follows: 126/78 sitting with pulse 78 and regular; 122/70 supine with pulse 76 and regular; and 118/82 standing with pulse 88 and regular. His respiration was 12 in all positions. Cardiac examination revealed no cardiomegaly, heaves or thrills. Heart sounds were normal without murmurs or gallops. There was no elevation of the jugular venous pressure, no hepatomegaly, and no dependent edema. An electrocardiogram and chest x-ray were within normal limits. On the basis of the foregoing evidence, the Board concludes that the veteran's current 10 percent evaluation for hypertension is an accurate rating. Of note, there is no objective medical evidence of diastolic pressure predominantly 110 or more with definite symptoms. Rather, he has been essentially asymptomatic and the recent evidence of record indicates that his diastolic pressure is predominantly below 100. There is, however, a history of diastolic blood pressure predominantly 100 or more and continuous medication is demonstrated to be necessary for control of the hypertension. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for hypertensive vascular disease. 38 C.F.R. Part 4, Code 7101 (1994). ORDER 1. Entitlement to a rating in excess of 10 percent for residuals of a left knee injury is denied. 2. Entitlement to a rating in excess of 10 percent for hypertensive cardiovascular disease is denied. 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.