BVA9502568 DOCKET NO. 93-10 220 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for the postoperative residuals of a right total knee replacement, currently rated as 30 percent disabling. 2. Entitlement to a combined disability rating of 60 percent for two service-connected disabilities, each rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from November 1941 to May 1945. This appeal is before the Board of Veterans' Appeals (the Board) from a December 1991 rating decision of the Regional Office (RO) which granted a 30 percent rating, effective August 1992, for the veteran's right knee disorder; and a combined rating of 50 percent for the veteran's two service-connected disabilities, effective August 1992. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the symptoms of his service-connected right knee disorder warrant a disability evaluation in excess of the 30 percent currently assigned. He asserts that he has very limited range of motion in the knee and is unable to walk without a cane. In addition, the veteran contends that a 60 percent combined rating should be assigned for his right knee disorder, currently rated as 30 percent disabling, and right ankle disorder, currently rated as 30 percent. 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 claims for an increased evaluation for a right knee disorder and a 60 percent combined disability evaluation. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's right a total knee replacement is manifested by some pain and tenderness with motion, and limitation of motion measured at 5 degrees extension to 82 degrees flexion. 3. The veteran's right knee disability does not result in frequent hospitalization nor marked interference with employment. 4. Service connection is also in effect for a right ankle disorder, rated 30 percent disabling. 5. Under the regulatory table for combined ratings, the veteran's two service-connected disabilities, rated as 30 percent each, warrant a 50 percent combined rating. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for a right knee disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.40, 4.71a, Codes 5055, 5256, 5257, 5260, 5261, and 5262 (1994). 2. The combined rating for two disabilities, rated as 30 percent each, is 50 percent. 38 U.S.C.A. §§ 1155, 1157 (West 1991); 38 C.F.R. §§ 4.1, 4.25, and Table I (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for 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. After reviewing the evidence on file we conclude that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claims presented are not inherently implausible. Furthermore, we conclude that all facts pertinent to the claims have been developed and that as such, there is no further duty to assist in developing the claim as contemplated by 38 U.S.C.A. § 5107(a). I. Entitlement to an increased evaluation for right knee disorder Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent period of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The entire history of the disability will be reviewed. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Historically, the veteran sustained a combat wound to his right ankle joint in July 1944 which resulted in surgical arthrodesis and complete bony ankylosis. In 1946 the right ankle was again surgically fused. The veteran was afforded a VA orthopaedic examination in March 1948. The examination showed ankylosis of the right ankle at 3 degrees plantar flexion in satisfactory position. It was also noted that there was a chronic strain of the right knee with a relaxed anterior cruciate ligament. In a June 1948 rating decision, service connection was granted for the right knee disorder secondary to the service-connected right ankle disorder. A 10 percent rating was assigned to the right knee disability and a 20 percent rating to the right ankle disability. In a March 1960 rating decision, the RO increased the disability evaluation for the veteran's right ankle disorder to 30 percent. Following a VA examination, the RO increased the disability evaluation for the right knee disorder from 10 to 20 percent in a March 1989 rating decision. In a December 1991 rating decision, the disability evaluation for the veteran's right knee disorder was again increased to its current rating of 30 percent. VA outpatient treatment records, dated in 1990 and 1991, show continued complaints of pain and poor range of movement in the right knee. X-ray findings of June 1990 showed complete loss of joint space in the right knee with a poor range of movement and a 20 degree flexion deformity. A VA hospital discharge summary report, dated in June 1991, shows that the veteran was admitted for a right total knee replacement. Three days after surgery he began physical therapy. When he was discharged he was ambulating without difficulty with the aid of a walker. As of August 1991 the right knee had some slight swelling, lacked 5 degrees of full extension and had flexion to 65 degrees. The veteran was afforded a VA orthopaedic examination in April 1992. The examination was scheduled following a year long period of convalescence following the total knee replacement surgery. Recorded history was that the surgery had helped with his pain. The examination report noted the veteran reported he still had stiffness, soreness, and a little bit of motion in the right knee. However, there was no swelling or giving way. He wore a brace intermittently when he was up to using it. He used a cane at times as well. He could walk approximately one mile. Physical examination showed he could ambulate independently. There was some pain with motion, some ache and pain and tenderness. No effusion was seen. Motion was from 5 degrees to 82 degrees of flexion and no instability was seen. X-rays showed a total right knee with prosthesis in good position. The final diagnosis was status post right total knee replacement with limited motion. A VA physical therapy summary note, dated in May 1992, indicated that the veteran had seen the orthopedist the day before and the doctor was satisfied with his results. The veteran's right knee lacked 5 degrees of full extension and flexed to 85 degrees. The veteran also stated he only wore his knee brace if he was going outside to do yard work. The therapist noted that the veteran had received a total of 18 visits. He was ambulating very well with no assistive device. He was discharged from physical therapy to continue with home exercises and return on an "as needed" basis. Written statements from the veteran, dated in June and July 1992, indicated that he had lost his balance and fallen several times. He was carrying a cane at all times to keep his balance. He had been told by his personal physician not to walk any more than was necessary. He felt his knee should be rated higher. VA outpatient clinic notes, dated in July 1992, show that the veteran complained that for the past week his right knee had been "cracking" and tight when walking. Physical examination revealed a slight decrease in flexion and extension. There was no crepitance, effusion or increased temperature. VA outpatient clinic notes, dated in November 1992, show that the previously noted calf cramping was minimal to none then. The veteran was noted to ambulate with a cane. Strong pulses were noted. The examiner was satisfied with the result and noted the veteran should be seen again in one year for examination of the knee and x-rays. VA regulations provide that replacement of either knee joint with a prosthesis warrants a 100 percent evaluation for a 1-year period following implantation of the prosthesis. This period commences at the conclusion of the initial grant of a total rating for 1 month following hospital discharge pursuant to 38 C.F.R. § 4.30. Thereafter, a 60 percent evaluation is warranted if there are chronic residuals consisting of severely painful motion or severe weakness in the affected extremity. With intermediate degrees of residual weakness, pain, or limitation of motion, the disability will be rated by analogy to diagnostic codes 5256, 5261 or 5262. The minimum evaluation is 30 percent. 38 C.F.R. § 4.71a, Code 5055. Diagnostic Code 5256 provides that favorable ankylosis of either knee warrants a 30 percent evaluation. Ankylosis is considered to be favorable when the knee is fixed in full extension, or in slight flexion at an angle between 0 degrees and 10 degrees. A 40 percent evaluation requires that the knee be fixed in flexion at an angle between 10 degrees and 20 degrees. 38 C.F.R. § 4.71a, Code 5256. Limitation of flexion of either leg to 15 degrees warrants a 30 percent evaluation, the highest possible under this rating code. 38 C.F.R. § 4.71a, Code 5260. Limitation of extension of either leg to 20 degrees warrants a 30 percent evaluation. A 40 percent evaluation requires that extension be limited to 30 degrees. A 50 percent evaluation requires that extension be limited to 45 degrees. (Extension limited to 5 degrees warrants a noncompensable rating.) 38 C.F.R. § 4.71a, Code 5261. Diagnostic Code 5262 provides that malunion of the tibia and fibula of either leg with marked knee or ankle disability warrants a 30 percent evaluation. A 40 percent evaluation requires nonunion of the tibia and fibula with loose motion requiring a brace. In addition, Diagnostic Code 5257 provides that a 30 percent evaluation, the highest possible evaluation under this rating code, requires severe impairment of a knee. 38 C.F.R. § 4.71a, Code 5257. In evaluating the degree of disability the Board must consider the clinical findings of functional loss, as well as functional loss due to pain. Functional loss due to pain may be found if supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The Board finds, based on the evidence of record, that the objective findings of the veteran's right knee disorder do not warrant more than a 30 percent evaluation under Codes 5055, 5256, 5257, 5260, 5261, or 5262. The evidence shows that the veteran had a good result from surgery; he does not have chronic residuals resulting in severe painful motion or weakness in the right leg. Extension is only 5 degrees and flexion is to 82-85 degrees. The recent VA examination found no ankylosis, and no more than moderate limitation of range of motion, with some pain and tenderness. Furthermore, the examination showed the veteran had good mobility without the use of any additional aid, support, or device. Although it was noted that he used a brace and cane at times, the veteran has also indicated he could walk a mile. It has also been reported that the surgery helped with the complaints of pain. The Board has also considered the provisions of 38 C.F.R. § 4.40 and the veteran's limitation of movement due to pain. Taking into consideration the objective findings as well as the subjective statements of the veteran, the Board finds that the veteran's right knee disorder warrants no more than a 30 percent evaluation. In reaching our decision consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). We also do not find that the evidence presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular criteria, so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). There is no evidence of frequent periods of hospitalization or marked interference with employment due to this disorder. II. Entitlement to a 60 percent combined evaluation VA regulations provide a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries. These ratings are based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. They provide for 10 separate ratings: 10, 20, 30, 40, 50, 60, 70, 80, 90, and a total rating of 100 percent. 38 U.S.C.A. §§ 1155, 1157; 38 C.F.R. §§ 4.1, 4.25. A combined rating for two or more service-connected disabilities is not arrived at by simply adding the percentage ratings together. (In the instant case, the Board agrees that such simple addition would have resulted in a combined disability rating of 60 percent.) Rather, consideration is given to the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition(s), in the order of severity. Thus, in the instant case, the veteran has a 30 percent disability for his right ankle disorder. So he is considered 70 percent efficient. Now, the second 30 percent disability rating for his right knee disorder is considered. Since the veteran has now been reduced to a 70 percent efficiency, the second 30 percent is really just from that 70 percent. Since 30 percent of 70 percent is 21 percent, the veteran loses another 21 percent in his total efficiency. So he has a combined (30% and 21%) disability rating of 51 percent, which is rounded to 50 percent as required by law. Consequently, the veteran's claim for a combined rating of 60 percent, based on his two service-connected disabilities of 30 percent each, must be denied. This legal "combination" of ratings, as distinguished from "adding" of ratings can also be visualized in 38 C.F.R. Part 4, Table I, the Combined Ratings Table, following 38 C.F.R. § 4.27. The Board is bound by these regulations when determining combined ratings. 38 U.S.C.A. § 7104. Review of the record does reveal that, on occasion in the past, the veteran's combined ratings have come to the same sum by either addition or the use of the combined ratings table. For instance when his ankle was rated 20 percent and the knee was rated 10 percent the sum by addition was 30, as was the result using the combined ratings table (20 combined with 10 was 28, which rounded to the nearest 10 raised the 28 to 30). That coincidence however does not invalidate the current combined rating of 50 percent. That is the proper rating by law for the disabilities at issue. ORDER An increased evaluation for the postoperative residuals of a total right knee replacement is denied. A combined rating of 60 percent for two service-connected disabilities, each evaluated at 30 percent, is denied. MICHAEL D. LYON 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.