BVA9504027 DOCKET NO. 92-19 766 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for residuals of a left knee injury, secondary to service-connected toxic shock syndrome with left lower leg and thigh muscle contractures. 2. Entitlement to restoration of a 10 percent disability rating for toxic shock syndrome with left lower leg muscle contractures. 3. Entitlement to restoration of a 10 percent disability rating for toxic shock syndrome with left thigh muscle contractures. 4. Entitlement to a 10 percent evaluation for multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324. REPRESENTATION Appellant represented by: Milton C. Smith, Attorney at Law WITNESS AT HEARING ON APPEAL The appellant and his mother ATTORNEY FOR THE BOARD J. F. Gussio, Associate Counsel INTRODUCTION The veteran had active military service from January 1988 to June 1988. This appeal to the Board of Veterans' Appeals (Board) arises from a May 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In December 1992, this case was administratively remanded for further development. In November 1994, this case was transferred to the Lincoln, Nebraska RO. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for residuals of his left knee injury on the basis that it was proximately due to or the result of his service-connected toxic shock syndrome with left lower leg and thigh muscle contractures. He claims that he developed an infection in his left calf and thigh muscle in service, which required rehabilitation and physical therapy. He claims that his knee became weak as a result of the infection. He claims that following service he experienced left knee instability when exercising and subsequently injured his left knee playing softball in 1989. He also contends that he is entitled to restoration of the 10 percent disability rating for toxic shock syndrome with left lower leg muscle contracture and restoration of the 10 percent disability rating for toxic shock syndrome with left thigh muscle contractures. Finally, he contends that a compensable rating is warranted for his service-connected disabilities pursuant to 38 C.F.R. § 3.324. 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 his claims for service connection for residuals of a left knee injury, secondary to his service-connected toxic shock syndrome with left lower leg and thigh muscle contractures; restoration of a 10 percent disability rating for toxic shock syndrome with left lower leg muscle contractures; restoration of a 10 percent disability rating for toxic shock syndrome with left thigh muscle contractures; and a compensable rating pursuant to 38 C.F.R § 3.324. FINDINGS OF FACT 1. It is not shown that the veteran's left knee injury in 1989 is related to or was caused by his service-connected toxic shock syndrome with left lower leg and thigh muscle contractures. 2. It is not shown that the veteran has residuals of the toxic shock syndrome with left lower leg muscle contractures. 3. It is not shown that the veteran has any significant residuals of the toxic shock syndrome with left thigh muscle contractures, with less than slight disability of Muscle Group XIV and no disability of Muscle Group XIII. 4. It is not shown that the veteran's service-connected disabilities clearly interfere with his normal employability. CONCLUSIONS OF LAW 1. The veteran's left knee injury is not proximately due to or the result of his service-connected toxic shock syndrome with left lower leg and left thigh muscle contractures. 38 C.F.R. § 3.310 (1994). 2. The criteria for a 10 percent disability evaluation for toxic shock syndrome with left lower leg muscle contractures have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.344, 4.40, 4.41, 4.50 ,4.51, 4.53, 4.54, 4.55, 4.72 and Part 4, Diagnostic Code 5311. (1994). 3. The criteria for a 10 percent disability evaluation for residuals of toxic shock syndrome with left thigh muscle contractures have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.344, 4.40, 4.41, 4.50 ,4.51, 4.53, 4.54, 4.55, 4.72 and Part 4, Diagnostic codes 5313, 5314 (1994). 4. The requirements for a 10 percent rating for multiple noncompensable service-connected disabilities have not been met. 38 C.F.R. § 5107 (West 1991); 38 C.F.R. § 3.324 (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) (1991). That is, he has presented claims which are plausible. The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). I. Entitlement to service connection for a left knee injury, secondary to service-connected toxic shock syndrome with left lower leg and thigh muscle contractures. The veteran is service-connected for toxic shock syndrome with left lower leg and thigh muscle contractures. In May 1989, he twisted his left knee playing softball. He claims that his left knee injury is proximately due to or the result of his service - connected toxic shock syndrome with left lower leg and thigh muscle contractures. Service connection may be established for disability resulting from injury or disease incurred in service or for a pre-existing injury or disease that was aggravated by service. 38 U.S.C.A. § 1131 (West 1991). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (1994). The service medical records reveal that the veteran was admitted to an emergency room with complaints of pain and swelling in his left thigh and knee in January 1988. Physical examination of the lower extremities revealed diffuse, dense swelling of the left calf and thigh that was tender to palpation with patchy erythema, decreased range of motion in the left knee and hips secondary to pain, and questionable effusion of the left knee. There were no cords or adenopathy noted. X-rays of the left femur showed no free air or bony abnormalities or coagulopathy. The assessment was cellulitis involving the left thigh. The next day the claimant became hypotensive and presumably septic and was transferred to the intensive care unit (ICU). An antibiotic program was established. His condition gradually improved with decreased left leg swelling. He was subsequently transferred out of ICU after a couple of days. He underwent physical therapy for his left knee and was ambulatory with crutches on discharge. On a follow-up evaluation in March 1988 prior to discharge, he had complete range of motion of the left knee without pain. Strength was 5/5 throughout. On the Medical Board evaluation in May 1988, the final diagnosis was toxic shock syndrome, secondary to left leg cellulitis with probable staphylococcus infection, and mild contractures of the muscles and tendons of the left leg, secondary to the extensive inflammation. The physician noted that the contractures were gradually resolving and responding to physical therapy. The veteran was discharged unfit for duty. In a private physician's report dated in June 1989, Patricia Gorai, M.D., disclosed that the veteran reported that he injured his left knee playing softball in May 1989. He described the injury as a dislocation of his patella, medially. Physical examination of the left knee revealed moderate effusion, and ecchymotic skin medially. The patella was tender both medially and laterally. There was no tenderness along the joint line. He did not have instability with valgus stress. With varus stress, there was laxity in full extension and flexion. His other knee had the same instability. Dr. Gorai stated that she did not have a good explanation for his unusual dislocation, if such existed. She stated that it could be related to his prior knee problem if that left him with a relatively contracted medial patellar retinaculum so that with a rotational strain, his patella would be tighter medially and displaced medially rather than laterally. In a private physician's report dated in March 1990, Earnest M. Burgess, M.D., stated that there was no evidence externally of any pathological state involving the lower extremities. There was no local tenderness about either knee. Both knees tended to hyperextend about 10 percent. His reflex was normal. Peripheral circulation was good. There was no gross difference in strength of the major muscle groups of either lower limb or hips. X-rays were not remarkable. Dr. Burgess stated that the claimant had definite ligament instability but had gained good muscle control and strength. He stated that the claimant may need surgical reconstruction in the future. He did not comment on the causal relationship of the veteran's left knee injury after service and his service- connected disorders. On VA compensation and pension examination in August 1990, physical examination of the lower extremities revealed the muscles of both legs were symmetrically well-developed. There was full range of motion of the knee without symptoms. The physician's impressions were status post toxic shock syndrome due to infection of the left leg, no residual symptoms; and anterior cruciate ligament tear, left knee, with residual dysfunction. The physician commented that the veteran's left knee had no relationship to his prior toxic shock syndrome. In an affidavit dated in March 1991, Mike Savoia stated that he worked and played basketball with the veteran and observed his left knee give out on a number of occasions after he was discharged from service. At a personal hearing in March 1991, the veteran testified that he experienced knee pain and instability following discharge from service while playing basketball. T-16. He stated that his leg was as strong as ever in May 1989 when he injured his knee. T-16. He stated that when he injured his knee he heard a pop and felt a lot of pain. T-17. He stated that he did not have problems with his knee until after service. T-18. His mother testified that when she went to visit the veteran in the hospital in service the doctor told her that her son would have hip and knee problems in the future. T-28. In a private physician's report dated in April 1991, John E. McDermott, M.D. disclosed that he reviewed Drs. Wood and Burgess' medical reports and stated that while there was some inconsistency in describing the veteran's injury in 1989, he agreed with the diagnoses of a possible anterior cruciate injury and probable meniscal injury. Dr. McDermott did not comment on the cause of the veteran's knee disorder after service. At the personal hearing on appeal in May 1992, the veteran testified that he was in excellent health prior to entering service and had no knee problems. T-4. He stated that when he injured his knee in service and was hospitalized for toxic shock syndrome, his left leg was swollen and locked in a 45 degree angle. T-10. He stated that he experienced popping and instability in his left knee while playing basketball in June 1988. T-15 He stated that he felt there was a causal connection between his left knee injury after service and his toxic shock syndrome in service. T-18. His mother testified that he had no knee problems prior to service, T-27, and that he had problems with the knee after service. T-29. She also noted that the doctors in service told her that her son would have knee and hip problems in the future. T-33. On the VA orthopedics examination in July 1992, physical examination of both lower extremities revealed no obvious effusion or deformities. He had full range of motion of his left knee. He had no palpable tenderness around his knee and no patellar instability. The physician stated that the claimant may have an anterior cruciate ligament tear but this could not be confirmed because the veteran had not received an MRI. He stated that even if the claimant had weakened musculature secondary to toxic shock, he had documented full strength in March 1988. The physician further stated he could not say that there was a link between the veteran's toxic shock syndrome and the left knee injury following service. On VA examination in June 1994, MRI revealed a normal left leg and knee. Physical examination of the left knee revealed full range of motion without pain. There was one plus laxity of the medial and lateral collateral ligaments, which was consistent with laxity of all of his joints. The diagnosis was congenital joint laxity of the knees and mild residual quadriceps weakness with no loss of motion. The physician commented that he believed that the veteran's only residual problem from [the infection in service] was "very mild if imperceptible weakness" of the left quadriceps musculature. The physician further commented that he really didn't consider it significant. On VA joint examination in July 1994, physical examination of the left knee revealed no effusion with normal valgus alignment to the lower extremity and full range of motion. There was mild laxity of the medial and lateral collateral ligaments with varus/valgus stress. The MRI taken in July 1994 revealed the anterior and posterior ligaments were intact and decreased signal from the lateral femoral condyle. No bony or cartilaginous collapse was noted. The diagnoses were clinical laxity of the anterior cruciate ligament of the left knee; possible avascular necrosis of the lateral femoral condyle of the left knee; and mild congenital ligamentous laxity of both knees. The physician noted that it was difficult to say that there was a definite link between the cellulitis that the veteran had in service and the ligamentous laxity noted after service, but it was possible if he actually had infection of the knee joint. He noted that there were no records of instability of the knee following the resolution of the infection. The medical evidence, as outlined above, reveals no link between the residuals of toxic shock syndrome with left lower leg and thigh muscle contractures noted in service and the veteran's current left knee disorder which began after service. While Dr. Gorai stated that the veteran's left knee injury could be related to his prior knee problem if it involved contracted medial patellar retinaculum, such findings were not supported by the service medical records. The veteran had full range of motion of the left knee and strength was 5/5 in March 1988 prior to discharge. Moreover, subsequent private and VA examinations revealed no residual impairment of toxic shock syndrome with the left lower leg and left thigh muscles. Absence of such findings after the veteran injured is left knee in 1989 supports the finding that there was no relationship between the veteran's left knee injury and his left lower leg and thigh muscle contractures noted in service. Likewise, there was no infection of the knee joint found in service as a possibility suggested by the VA physician in July 1994. A VA physician found in 1990 that there was no relationship between the veteran's left knee disorder and his service-connected disability. Consequently, the preponderance of the evidence is against the veteran's claim for secondary service connection for residuals of a left knee injury. In making this determination, the Board has considered the lay statements of record and testimony by the veteran and his mother. The testimony was to the effect that the residuals of toxic shock syndrome caused or contributed to his left knee injury in 1989. While this testimony is credible, its probative value is outweighed by the absence of a medical link between the veteran's service-connected left lower leg and thigh disorders and his injury in 1989. Moreover, lay persons are not competent to comment on medical causation. Espiritu v Derwinski, 2 Vet.App. 492 (1992). II. Restoration of 10 percent rating for left lower leg muscle contracture and restoration of 10 percent rating for left thigh muscle contracture. The veteran essentially argues that his residuals of toxic shock syndrome have not improved and that he is entitled to the restoration of the disability ratings that were previously in effect. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating schedule criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. The record reveals that the veteran was separated from active service as a result of his toxic shock syndrome with left lower leg and thigh muscle contractures. The RO, in July 1988, established service connection for toxic shock syndrome with left lower leg and thigh muscle contractures, effective in June 1988. A 10 percent disability rating was assigned for the left lower leg muscle contractures and a 10 percent disability rating was assigned for the left thigh muscle contractures. The RO, in October 1990, proposed to reduce the veteran's benefits pursuant to 38 C.F.R. 3.105 (e), on the basis of the results of the August 1990 VA examination that showed the muscles of both legs were symmetrically well-developed and he had full range of motion. The pertinent impression was status post toxic shock syndrome due to infection of the left leg, no residual symptoms. In a May 1991 rating decision, the RO reduced the veteran's disability ratings to 0 for the left leg and thigh, effective in August 1991. Initially, the Board notes that the provisions of 38 C.F.R. § 3.344 have been considered in reaching this decision, but are found not to apply. These provisions apply only for ratings which have been in effect for about 5 years or more. 38 C.F.R. § 3.344(c). Here, the veteran's ratings were in effect for a little more than three years prior to reduction. In addition, the provisions of 38 C.F.R. § 3.105(e) have been met. The veteran was issued a rating decision proposing the reduction in October 1990, and was provided with 60 days to respond to the proposal. Therefore, the Board will proceed with a review of the evaluation of the veteran's disabilities. The veteran's disabilities are evaluated under the schedule for ratings pertaining to muscle injuries. 38 C.F.R § 4.72, Codes 5311 and 5313 (1994). Addressing the issue of entitlement to restoration of a 10 percent rating for toxic shock syndrome with left leg muscle contractures, a noncompensable evaluation is warranted for slight injury to Muscle Group XI (posterior and lateral crural muscles). A 10 percent evaluation requires moderate injury. A 20 percent evaluation requires moderately severe injury. A 30 percent evaluation requires severe injury. 38 C.F.R. Part 4, Code 5311. The medical evidence reveals no residuals of toxic shock syndrome with left lower leg contractures. Dr. Burgess noted that the veteran had good muscle control and strength in March 1990. When the veteran was examined by the VA in August 1990, the muscles of both legs were symmetrically well-developed and he had full range of motion. VA examination in 1992 and 1994 revealed no residual evidence of toxic shock syndrome with left lower leg muscle contractures. In sum, a 10 percent disability rating for toxic shock syndrome with lower left leg muscle contractures is not warranted. Addressing restoration of a 10 percent disability rating for toxic shock syndrome with left thigh muscle contractures, a noncompensable evaluation is warranted for slight injury to Muscle Group XIII (posterior thigh group) or Muscle Group XIV (anterior thigh group). A 10 percent evaluation requires moderate injury. A 30 percent evaluation requires moderately severe injury. A 40 percent evaluation requires severe injury. 38 C.F.R. Part 4, Codes 5313, 5314. Likewise, there is no medical evidence of any significant residuals of toxic shock syndrome with left thigh muscle contractures. VA and private physicians have not found any abnormality of the left thigh musculature, with the exception of a VA examiner in 1994 who found "very mild almost imperceptible," and "very mild if imperceptible," and "so mild that [he] really [didn't] consider it significant," weakness of the left thigh quadriceps musculature. These findings clearly indicate less than slight disability of Muscle Group XIV and no disability of Muscle Group XIII. Therefore, a 10 percent evaluation is not warranted. After careful consideration of the veteran's contentions and the medical evidence of record, the Board is unable to find that a 10 percent evaluation is warranted for toxic shock syndrome with left lower leg muscle contractures or that a 10 percent rating is warranted for toxic shock syndrome with left thigh muscle contractures. While the veteran and his mother testified that he had pain and instability in the left knee, such findings were not shown to associated with toxic shock syndrome. In reaching this decision, the Board has considered an extraschedular evaluation under 38 C.F.R. § 3.321, but marked interference with employment, frequent hospitalizations, or other evidence of an unusual disability picture has not been shown. The provisions of 38 C.F.R. § 4.40 were also considered, but a 10 percent evaluation is not merited under this regulation. The veteran was able to perform all the movements of his leg without pain on the VA examinations in 1994. Moreover, it was not shown that the veteran's service-connected disorders interfered with his limitation of motion of the left leg as to warrant application of Codes 5260 and 5261. III. Entitlement to a compensable disability evaluation pursuant to 38 C.F.R. § 3.324. Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of a compensable degree under the 1945 Schedule for Rating Disabilities the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324 (1994). The evidence does not show that the veteran's service-connected disabilities clearly interfere with his employability. There are no significant residuals of the toxic shock syndrome with left leg and thigh muscle contractures noted on VA examination in August 1990 and subsequent VA examinations in 1992 and 1994. While the veteran complains of left knee instability and loss of balance, such disorders are not service-connected. Without evidence to indicate that the veteran's service-connected disabilities clearly affect his employability, a 10 percent evaluation cannot be awarded. ORDER Entitlement to service connection for residuals of a left knee injury, secondary to his service-connected toxic shock syndrome with left lower leg and thigh muscle contractures, is denied. Entitlement to restoration of a 10 percent rating for toxic shock syndrome with left lower leg muscle contractures, is denied. Entitlement to restoration of a 10 percent rating for residuals of toxic shock syndrome with left thigh muscle contractures, is denied. Entitlement to a 10 percent evaluation for multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324 is denied. WILLIAM J. REDDY 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.