BVA9504408 DOCKET NO. 90-45 910 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left knee disability as secondary to service connected right knee disability. 2. Entitlement to special monthly compensation due to loss of use of the right lower extremity. 3. Entitlement to financial assistance in acquiring an automobile or other conveyance or special adaptive equipment. 4. Entitlement to individual unemployability due to service connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Associate Counsel INTRODUCTION The veteran served on active duty from May 1945 to October 1946, from April 1948 to April 1950 and from November 1950 to June 1952. This appeal arises from a June 1989 rating decision of the St. Petersburg, Florida, Regional Office (RO). This decision denied entitlement to the benefits sought on appeal. It was confirmed and continued by rating actions issued in July, September and October 1989, February and May 1990, June 1991, July 1992 and September 1993. The case was remanded by the Board of Veterans' Appeals for further procedural development and for development of the record in May 1991, April 1992 and August 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran disagrees with the June 1989 rating decision of the St. Petersburg, Regional Office (RO), which had denied entitlement to the benefits sought on appeal. He states that his right knee disability has progressed to the point that he suffers from loss of use of the right lower extremity. Because of this lower extremity impairment, he states that he is no longer able to drive and needs assistance in obtaining another vehicle or in adapting his present vehicle. He has also alleged that his left knee disability was caused by his service connected right knee condition. Finally, he asserts that he is unable to obtain and maintain substantially gainful employment because of his service connected disabilities. Therefore, he believes that the benefits sought should be granted. Further evidentiary development has also been requested. Specifically, the representative argues that the record is not sufficiently up to date, particularly with respect to the psychiatric 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(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 the preponderance of the evidence is against the veteran's claims. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. There is no etiological relationship between the veteran's service connected right knee disability and his left knee disability. 3. The veteran has actual remaining function in the right foot such that balance and propulsion would not be equally well accomplished by an amputation stump above the knee with suitable prosthetic appliance. 4. The veteran does not have loss of use of the right foot as the result of a service connected disability. 5. The veteran's service connected disabilities do not prevent him from working at a substantially gainful occupation. CONCLUSIONS OF LAW 1. The veteran's left knee disability is not proximately due to or the result of his service connected right knee disability. 38 U.S.C.A. §§ 1131, 5107(a) (West 1991); 38 C.F.R. § 3.310(a) (1993). 2. The criteria for an award of special monthly compensation for loss of use of the right foot are not met. 38 U.S.C.A. §§ 1114(k), 5107(a); 38 C.F.R. §§ 3.350(a)(2), 4.63 (1993). 3. The eligibility criteria for financial assistance in acquiring an automobile or other conveyance or special adaptive equipment have not been met. 38 U.S.C.A. §§ 3901, 3902, 5107(a) (West 1991); 38 C.F.R. §§ 3.808, 4.63 (1993). 4. The veteran is not unemployable due to service connected disabilities. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claims that are plausible. We are also satisfied that all pertinent facts have been properly developed. While the veteran's representative has requested that additional development be undertaken, it is our opinion, after a review of the evidence, that such development is unnecessary at this time. The current record is a sufficient basis upon which to determine entitlement to the benefits being sought. Therefore, no further development is necessary in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). With respect to the psychiatric disorder, records of VA outpatient treatment are associated with the claims file. We are of the opinion that these records shed sufficient light on the nature and severity of current disablement. I. Entitlement to service connection for a left knee disability as secondary to his service connected right knee disability. Under the applicable criteria, service connection may be granted for a disability which is proximately due to or the result of a service connected disease or injury. As will be explained below, we conclude that service connection on this basis for a left knee disability is not warranted. The service medical records indicated that the veteran injured his right knee in August 1945 when he tripped in a foxhole. He subsequently re-injured this knee in service. Arthrotomy was performed in 1946. His first complaints of pain in the left knee were made in May 1946. He apparently suffered a contusing, twisting type injury to the left knee. However, an X-ray made in May 1946 showed only positive findings in the right knee, not the left. A clinical record in January 1947 refers to history of left knee pain since May 1946. A VA examination conducted in November 1947 noted that there was no swelling, crepitus or instability in the left knee. However, there were complaints of pain upon forced flexion of both knees. No left knee disability was diagnosed. In May 1953, a VA examination referred exclusively to the right knee, showed slight traumatic arthritis. On this occasion, and on VA examination in 1965, the left knee was normal. Gait was also normal. X-rays in 1977 showed arthritis in both knees. Throughout the 1980's, the veteran continued to seek treatment for his service connected right knee disability. A VA examination from November 1986 was the first to refer to a limping gait. He underwent a total right knee replacement in March 1988. The veteran testified at a personal hearing in January 1990. While he referred to the worsening of his right knee disability, he made no mention of a left knee disability. A statement from R. H. Kelly, M. D., a private physician noted that the veteran appeared to have significant limitations of the right knee. In reference to the left knee, it was stated that there was flexion of 0 to 120 degrees. The examination of this joint was essentially within normal limits, save for some faint crepitation. No statement was made as to the source of the left knee complaints. The veteran was then examined by the VA in June 1992. He complained of grating, give way and severe pain in the left knee. It was noted that this knee could flex from 0 to 100 degrees. Extension was done well and there was some crepitus present. He was unable to squat, and sone swelling was noted. The diagnoses were internal derangement of the left knee and severe arthritis. The examiner then rendered an opinion that, given the severity of the veteran's right knee disability, it was certainly feasible that the left knee disability was secondary to the right knee disorder. This case was then referred to a Board Medical Adviser for an opinion, which was rendered in April 1993. The adviser was asked to provide an opinion as to the etiological relationship between the veteran's service connected right knee disability and the development of a left knee disorder. A review of the service medical records revealed that the veteran had suffered from internal derangement of the right knee. X-rays of both knees taken at that time revealed no bone defect or narrowing. He underwent a total right knee replacement while in the service. He also experienced a twisting, contusing injury to the left knee while on active duty, although an examination done in June 1946 only referred to positive findings involving the right knee. Physical examinations conducted in May 1953 and December 1965 were normal; however, there was X-ray evidence of arthritis in both knees in 1965. The adviser stated the opinion that the left knee injury experienced by the veteran in service was acute and transitory in nature and had resolved by his separation from duty. The development of arthritis in his right knee appeared to be consistent with the applicable orthopedic literature reviewed by the Medical Adviser. It was further opined that with the functional and structural capabilities of the right knee described as being essentially intact, no biomechanical stresses, as a result of abnormal function of the right knee, causing increased load on the left knee are described. The conclusion was that there was no basis upon which to conclude that the left knee disability was the result of his service connected right knee disorder. After a careful review of the evidence of record, we conclude that entitlement to service connection for a left knee disability as secondary to his service connected right knee disorder is not warranted. We note that the June 1992 VA examination had stated that such a connection was feasible. However, this opinion is tentative and speculative in nature. This opinion is outweighed by the opinion rendered by the Medical Adviser that was provided in April 1993. This opinion, after a complete review of all the evidence, and with reference to the medical literature, unequivocally and specifically found that there was no causal relationship between the service connected right knee disability and the later development of a left knee disorder. Given this opinion, the Board concludes that the veteran's left knee disability is not proximately due to or the result of his service connected right knee condition. Therefore, the preponderance of the evidence is against the veteran's claim for entitlement to service connection for a left knee disability. II. Entitlement to special monthly compensation due to loss of use of the right lower extremity. The veteran is service connected for the residuals of total right knee replacement evaluated as 60 percent disabling. 38 C.F.R. § 1114(k) provides additional monthly compensation for loss of use of a foot. The term "loss of use" is defined by regulation as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. Complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop will be taken as loss of use of the foot. 38 C.F.R. §§ 3.350(a)(2), 4.63. The evidence of record reveals that the veteran is service connected for the residuals of a total right knee replacement. This surgery was performed in March 1988. Following this procedure, it was noted during an April 1988 VA examination that he was in post-operative status. In fact, he came to the examination in a wheelchair. He was able to cautiously arise from the chair and walk to a nearby chair, although he used other objects for support. The Ace bandage was removed and an open wound was noted to present over the knee. There was no range of motion, with the knee held in a 20 degree state of flexion. The diagnosis was post-operative right total knee replacement. In June 1988, outpatient treatment records indicated that he only had about 10 degrees of extension, along with pre-tibial edema and persistent right knee pain. A May 1989 VA hospital report stated that the veteran was complaining of locking, swelling and give way. He walked with a limping antalgic gait and was noted to be using elbow crutches. He was also wearing a hinged brace in order to support the knee. He lacked 10 degrees of full extension on the right and could flex between 0 and 120 degrees. Edema was present below the patella in the right leg and ankle. The diagnosis was residuals, right total knee replacement. A private physician's statement from July 1989 noted that the findings made at that time were unchanged from the results of a November 1988 examination. He was noted to have no swelling or effusion, with flexion of 5 to 15 degrees. Manipulation to improve range of motion was recommended. A statement from P. J. Bajo, M. D., submitted in September 1989, remarked that the veteran chief complaints revolved around his inability to flex his right knee. The physical examination revealed that he was walking with the assistance of a crutch. He had marked stiffness in the right knee, but was able to dress and undress unassisted. He was also unable to walk on his heels and toes, or to squat or hop, but he was able to get on and off the examining table without assistance. The right knee displayed a scar and could be flexed to 25 degrees. There was no instability present. There were also no signs of inflammation, spasticity, enlargement, or effusion. He did have some tenderness in the right patellofemoral joint. An X-ray of the right knee was completely normal, with a little overriding patella. These studies revealed that the total knee replacement without signs of rejection or infection. The examiner commented that it was unclear why the veteran could only flex to 25 degrees. It was also noted that the examiner did not believe that the veteran had pain in this area and that he appeared able to walk without the crutches. In January 1990, the veteran testified at a personal hearing, wherein he stated that he could only flex his knee between 20 and 25 degrees. However, he quickly pointed that even this motion was useless to him because of the pain. He stated that he was required to wear a brace because he would be unable to support it on his own due to the pain and lack of strength. Because of this lack of ambulatory use, he feels that he has no effective use of the leg. Moreover, he testified that he has to drive his car with his right leg stretched out over the seat so that he can operate the vehicle with his left foot. However, he commented that, due to increasing severity of his left knee, this will soon be impossible. He can walk with a cane, and does not experience leg dragging when he does so, nor does he have foot drop. A private physician, R. H. Kelly, submitted a statement in February 1990 that contained the veteran's complaints that ever since the right knee replacement he has been unable to bend his knee, noting that it is fixed in extension. He also stated that any attempts at movement cause pain. During the examination he was noted to be able to walk without a cane, although he tended to support himself with something else. He was able to flex form 0 to 30 degrees; however, at 30 degrees he exhibited considerable muscle guarding of the right leg. There was no effusion. The impression was that he had significant limitation of motion in the right knee, although the reasons for this were unknown. It was then commented that his complaints seemed to be out of proportion to the physical findings. A VA examination conducted in June 1992, noted that range of motion in the right knee was nil. This joint also displayed swelling. The diagnosis was post-operative total right knee replacement. After a careful review of the evidence of record, it is our conclusion that that evidence does not support a finding that the veteran would be as well served by an amputation stump and prosthetic device as by his natural limb due to loss of use of the right foot. While this evidence shows that the veteran does wear knee brace for additional support and requires crutches to walk, some of this difficulty is due to severe arthritis of the left knee. Focusing on the right lower extremity, the most recent evidence shows no motion in the knee. However, the service connected disability is not shown to affect function in the right foot or ankle, and, according to Dr. Kelly, the veteran has good motor power and dorsiflexion and plantar flexion of the foot. We are of the opinion that function in the right lower extremity has not reached the point where it would be equally well served by amputation stump with suitable prosthetic appliance. For the above-noted reasons, the Board finds that the veteran has remaining function of the foot as to propulsion and balance such that he would not be equally well served by an amputation stump with prosthesis and , therefore, concludes that entitlement to special monthly compensation for loss of use of the right foot is not warranted. III. Entitlement to financial assistance in acquiring an automobile or other conveyance or special adaptive equipment. A certificate of eligibility for financial assistance in the purchase of one automobile or other conveyance will be provided any eligible veteran or service member whose service connected disability includes one of the following: loss or permanent loss of use of one or both feet; or loss or permanent loss of use of one or both hands; or permanent impairment of vision of both eyes to the required specified degree. 38 U.S.C.A. §§ 3901, 3902; 38 C.F.R. § 3.808. As discussed above, the veteran does not meet the regulatory definition of loss of use of the right foot. While he claims that he needs hand controls because of the inability to use his braced right leg to drive, we have already concluded that he does not meet the definition of loss of use. Nor does the veteran have a service connected eye disability. As the veteran does not have loss of use of the right foot, he is not eligible for financial assistance in acquiring an automobile or other conveyance or special adaptive equipment. Therefore, the preponderance of the evidence is against the veteran's claim. IV. Entitlement to individual unemployability due to service connected disabilities. According to the applicable criteria, total disability ratings for compensation may be assigned where the schedular rating for the service connected disability or disabilities is less than 100 percent when it is found that the service connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16. In the instant case, the veteran is service connected for the residuals of total right knee replacement, assigned a 60 percent disability evaluation and for psychoneurosis hysteria, assigned a noncompensable evaluation. His combined evaluation is 60 percent. While the veteran was counseled as to possible avenues of employment, this folder did not indicate that the veteran was unemployable. In fact, it was the consensus of the counselors that there was no sufficient evidence of the presence of a serious employment handicap caused by the transitory status of his knee disability. There was no vocational rehabilitation folder available. This showed that he completed high school; that he had two years of college in business and liberal arts; that he worked in real estate sales and appraisals; and that he felt he was no longer able to meet the demands of this work due to the right knee. Based upon an expectation that the right knee would improve (following replacement) in July 1988, the Vocational Rehabilitation Panel recommended that findings of serious employment handicap not be made. Nonetheless, we recognize that the subsequent medical record shows that the knee became increasingly symptomatic. The evidence of record, as noted above indicates that the veteran suffers from the residuals of a total right knee replacement. At the present time these include apparent limitation of right knee motion, pain and stiffness which affects his ability to walk. However, some of this difficulty walking is clearly or to significant left knee disablement and possibly also non-service connected foot problems. He wears a brace on the right knee. The veteran is also service connected for a neuropsychiatric disorder, rated as noncompensable. A neuropsychiatric examination conducted in April 1988 noted that the veteran had been working as a real estate salesman. He recounted having done quite well at this profession until his knee made working difficult. The mental status examination noted that he was alert, cooperative, coherent, relevant, well oriented, competent, anxious, and willing to learn a new occupation. Mentally and emotionally, he was noted to be capable of re-training and capable of obtaining and maintaining employment. The veteran sought treatment for psychiatric symptoms in 1991. He recounted being constantly irritable; he further admitted to being aware of being in a difficult situation. He appeared to be reacting to daily pressure, which included an ill wife and financial difficulties. He also had a problem with alcohol, which tended to exacerbate his problems. He entered therapy and began to learn ways to deal with everyday stresses. He also worked on accepting the fact that he had a problem with alcohol. He was an active participant in his therapy, talking about his frustrations with his wife, as well as about his financial situation. He acknowledged the use of alcohol, but denied that he abused it. His therapy centered around his treatment for this anxiety. We conclude from this record that his psychiatric difficulties at this time were situational in nature, and, occasionally exacerbated by alcohol abuse. He did not show gross impairment in thinking, behavior or cognition. After a review of this evidence, we conclude that the veteran is not entitled to a total rating based on individual unemployability due to his service connected disabilities. While the veteran states that he is unable to work, we note that the evidence does not indicate that these disabilities are of such severity as to prevent all forms of employment. Initially, we note that the veteran is significantly disabled because of his knee. Also, in 1989, Dr. Bajo opined that he was unable to drive a car because of right knee stiffness. It was also opined that he was limited in his ability to stand and sit. However, it is clear that the left knee was also considered in this assessment. In 1990, Dr. Kelly opined, after considering findings with respect to the back and both knees, that the veteran should be able to perform sedantary work where there is no stair climbing or significant walking involved. Despite the fact that the knee has become increasingly symptomatic since Dr. Kelly's assessment, we agree that the service connected disabilities alone do not preclude the veteran from the relatively sedentary work for which he is qualitied by virtue of his education and work experience. Despite loss of motion in the right knee, he is ambulatory. Despite an exacerbation of psychiatric symptoms, there is no clinical evidence that his ability to work has been significantly affected thereby, or that such problems are intractable. The preponderance of this evidence shows that the veteran, with his experience, degree, and expressed willingness to re-train, is not unemployable by virtue of his service connected disabilities. ORDER Service connection for a left knee disability secondary to his service connected right knee disability is denied. Special monthly compensation due to loss of use of the right lower extremity is denied. Financial assistance in acquiring an automobile or other conveyance or special adaptive equipment is denied. Individual unemployability due to service connected disabilities is denied. * NANCY I. PHILLIPS (MEMBER TEMPORARILY ABSENT) SAMUEL W.WARNER *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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.