Citation Nr: 0001244 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 96-49 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased disability rating for a left knee disability, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The veteran served on active duty from December 1967 to December 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a February 1996 rating decision of the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO increased the rating for the veteran's left knee disability from 10 percent to 20 percent. The veteran appealed for a rating higher than 20 percent. 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 left knee disability is currently manifested by arthritis, limitation of motion, and instability, producing some limitation of activity. CONCLUSION OF LAW The criteria for a 30 percent disability rating for postoperative residuals of internal derangement of the left knee, with degenerative joint disease, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.40, 4,41, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5259, 5260, 5261 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking a disability rating higher than the current 20 percent rating for his service-connected left knee disability. He sustained an injury of the left knee during service, and he underwent surgery on the knee in 1972, and again in 1996. The service-connected disability is described as postoperative residuals of internal derangement of the left knee, with degenerative joint disease. Service connection has also been established for a right knee disability secondary to the service-connected left knee disability. A person who submits a claim for veteran's benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has defined a well grounded claim as a plausible claim; one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claim for an increased rating for a disability is generally well grounded when an appellant indicates that the severity of the disability has increased. See Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992). The veteran claims that his left knee disability has worsened, and the Board finds that his claim for an increased rating is a well grounded claim. When a veteran has presented a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), VA has a duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). In this case, the Board finds that the facts relevant to the veteran's claim have been properly developed, such that VA has satisfied its statutory obligation to assist the veteran in the development of his claim. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1999). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1999). Nevertheless, the present level of disability is of primary concern, and the past medical reports do not have precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). VA regulations provide, and the Court has emphasized, that evaluation of a musculoskeletal disability must include consideration of the veteran's ability to engage in ordinary activities, including employment, and of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (1999); DeLuca v. Brown, 8 Vet. App. 202 (1995). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (1999). The veteran's service medical records show that he was seen in 1969 and 1970 for injury and continuing pain in his left knee. Examiners recorded impressions that the underlying disorder was a muscle strain, ligament strain, or ligament tear. After service, in June 1972, the veteran underwent surgery on his left knee. The treating physician found a tear of the medial semilunar cartilage, and a tear of the anterior cruciate ligament. The physician removed the medial semilunar cartilage, and repaired the anterior cruciate ligament. On VA examination in 1979, the veteran reported pain in his left knee, with limitation of motion and episodes of swelling. The examiner noted a range of motion of the left knee from 10 degrees of flexion (i.e., 10 degrees short of full extension) to 125 degrees of flexion, with mild laxity of the cruciate ligaments. In 1985 and 1986, the veteran reported that his left knee disorder had worsened. Notes from VA outpatient treatment in 1986 reflected that the veteran reported aching and giving way of the knee. The examining physician found that the veteran's left knee had full range of motion, tenderness under the patella, and moderate instability. X-rays taken in 1986 revealed degenerative joint disease due to old trauma. VA medical treatment notes from 1994 through 1996 show that the veteran was seen on a number of occasions for problems with his left knee. In September 1994, an examiner noted that the veteran was walking with a limp. The VA facility provided the veteran with a cane to use due to degenerative joint disease and laxity in his left knee. In May 1995, the veteran reported occasional pain in his left knee, particularly with activity. Examiners noted laxity of the knee, and tenderness of the patellar tendon. The range of motion of the left knee was from 10 to 115 degrees. In July 1995, the veteran reported that pain in his right knee was interfering with his employment. In February 1996, an examiner noted popping, pain, and swelling in the veteran's left knee. In August 1996, the veteran underwent arthroscopic surgery on his left knee. The physician found that the knee had degenerative joint disease and chondromalacia. The physician debrided degenerated tissue. The veteran was given a crutch for weight bearing following the arthroscopy. The veteran had hearings at the RO in September 1996, and again in July 1997. He reported that his left knee had not improved since the arthroscopy. He reported that he used a cane or crutches when he walked. He reported that he wore a brace on the knee at all times. He stated that the knee was unstable. He stated that he was not able to stoop or arise from stooping. He indicated that he could not extend the knee fully. He reported that he had been told that he would need a total knee replacement. He reported that he had been fired from his job, as a forklift operator, because of his difficulty working due to stiffness and pain in his left knee. He reported that his left knee disability made it difficult for him to obtain new employment. On VA examination in October 1997, the veteran wore braces on both of his knees, and he used crutches. The veteran reported that pain, swelling, and giving way of his left knee had worsened since 1995. The examining physician noted atrophy of the left thigh compared to the right thigh. The examiner found that the left knee was stable on various stressing tests. The examiner noted palpable ridging of osteoarthritis in the left knee, in the upper tibial plateau and in the medial femoral condyle. The examiner noted grating and popping of the knee with motion. The range of motion was to full extension, but flexion only to 100 degrees. The examiner noted rather significant genu valgum, or knock knees, in both knees. X-rays showed degenerative joint disease of the left knee. The examiner's impression was severe degenerative joint disease of the left knee. In October 1999, the veteran had a Travel Board hearing before the undersigned Board Member. The veteran reported that his left knee disability had continued to worsen over time. He reported that he received pain medication for his left knee disorder. He asserted that his left knee disability limited his everyday activities. He reported that he had not worked since 1996, when he had lost his job as a forklift operator because of limitations caused by his left knee disability. He indicated that stiffness, pain, and instability in his left knee had made it difficult to get into the forklift. He reported that he had fallen on a number of occasions because of instability of the left knee. He reported that he wore a brace on his left knee, and that he used crutches and a wheelchair. He stated that he got someone to assist him with household tasks. Under the rating schedule, degenerative arthritis is rated based on the limitation of motion of the affected joint. If the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent for each major joint is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999). Limitation of motion of the knee is rated compensably if flexion is limited to 45 degrees or less, or if extension is limited to 10 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (1999). The rating schedule provides for a rating of 10 percent for removal of the semilunar cartilage of the knee, if the knee is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (1999). Recurrent subluxation or lateral instability of the knee is rated at 10 percent if slight, 20 percent if moderate, and 30 percent if severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999). On the most recent examination, the range of motion of the veteran's left knee was from 0 to 100 degrees. Atrophy of the left thigh provided evidence of the limitation of function of the veteran's left knee. The veteran wears a brace on his left knee due to instability of the knee. The veteran has reported that stiffness and pain in his left knee interfered with performing his most recent job, as a forklift operator. Taking into account all of the manifestations of the veteran's left knee disability, including the impairment of movement and weightbearing, the Board finds that a 30 percent rating is warranted. In the absence of ankylosis, greater limitation of motion, or objective findings of greater instability, the Board does not find a basis for a rating greater than 30 percent for the left knee disability. In a Supplemental Statement of the Case (SSOC) issued in December 1997, the RO reported that they had consider whether an extraschedular rating, under 38 C.F.R. § 3.321(b)(1) (1999), was warranted. The regulation at 38 C.F.R. § 3.321(b)(1) provides that, to accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such 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. In the 1997 SSOC, the RO concluded that an extraschedular rating was not warranted, as the veteran's left knee disability did not present such an exceptional or unusual disability picture, with factors such as marked interference with employment or frequent periods of hospitalization. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The Board is not precluded, however, from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has reviewed this case in light of 38 C.F.R. § 3.321(b)(1) and the Court's mandates. The Board notes the veteran's reports that his left knee disability interfered with his work as a forklift operator. The Board finds that a 30 percent rating under the rating schedule, as awarded above, adequately addresses the veteran's impairment, including the interference with certain work duties, due to his left knee disability. The Board does not find that the disability picture is exceptional or unusual so as to make the rating schedule impractical in this case. ORDER Entitlement to a 30 percent disability rating for a left knee disability is granted, subject to laws and regulations controlling the disbursement of monetary benefits. JEFF MARTIN Member, Board of Veterans' Appeals