BVA9505773 DOCKET NO. 93-09 580 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to an increased rating for postoperative residuals, reconstruction of the anterior cruciate ligament of the right knee, currently evaluated 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert P. Regan, Counsel INTRODUCTION The appellant served on active duty from December 1981 to December 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 1991 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) located in Columbia, South Carolina, in which the RO granted entitlement to service connection for residuals of a right knee injury, assigned it a 10 percent evaluation, effective April 2, 1991, and denied entitlement to service connection for residuals of a back injury. Following receipt of a notice of disagreement, the RO furnished the appellant a statement of the case regarding these issues. A review of the statement of the case reflects that it contains the appropriate law and regulation and comprehensive rating criteria regarding entitlement to an increased evaluation for the service- connected right knee disorder. By June 1992 rating decision, the RO increased from 10 to 20 percent the schedular evaluation assigned the appellant's service-connected right knee disability. The appellant was notified of this favorable rating action in correspondence dated in June 1992. In a supplemental statement of the case dated in June 1992, the RO informed the appellant of the clinical findings of the pertinent VA examination and again of his increase to 20 percent for the right knee disorder. The RO also indicated that this increase to 20 percent "satisfies that appeal." The record does not reflect that the appellant has withdrawn the issue of entitlement to an increased evaluation for the service- connected right knee disorder pursuant to 38 C.F.R. § 20.204 (1994). Accordingly, this issue remains in appellate status. Additionally, the Board is satisfied that the supplemental statement of the case, when viewed in conjunction with the statement of the case, has adequately informed the appellant of the pertinent information regarding the status of this claim pursuant to 38 C.F.R. § 19.31 (1994). In the appellant's March 1992 substantive appeal, he indicated that he was appealing the effective date of the grant of service connection for the right knee disorder (April 2, 1991). In a January 1993 rating determination, the RO assigned an earlier effective date of March 1, 1991 for his service-connected right knee disability. The record is unclear as to whether the appellant has been notified of that determination. The RO should take appropriate action to inform the appellant of the current effective date and his appellate rights. 38 C.F.R.§ 19.25 (1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant maintains that the RO erred in not granting the benefits sought. He states that he sustained an injury to his low back while on active duty which required treatment following his release from military service. 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 appellant'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 evidence supports the appellant's claim of entitlement to service connection for lumbosacral strain, but the weight of the evidence is against his claim of an increased evaluation for the postoperative residuals, reconstruction of the anterior cruciate ligament of the right knee. FINDINGS OF FACT 1. The appellant's chronic lumbosacral strain is of service origin. 2. His postoperative residuals, reconstruction of the anterior cruciate ligament of the right knee, are productive of no more than moderate disability. 3. The postoperative residuals, reconstruction of the anterior cruciate ligament of the right knee do not result in marked interference with employment or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. Chronic lumbosacral strain was incurred during active air service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303(b) (1994). 2. The schedular criteria for a rating in excess of 20 percent for postoperative residuals, reconstruction of the anterior cruciate ligament of the right knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b) 4.7, Part 4, Diagnostic Code 5257 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board has found that the appellant's claims are well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that his claims are meritorious on their own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). This determination is based in part on the service medical records showing treatment for a back disorder and the appellant's assertion that his right knee disability has worsened. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Once it has been determined that a claim is well grounded, VA has a statutory duty to assist the appellant in the development of evidence pertinent to his claim. In this regard, the Board is satisfied that all relevant evidence necessary for a determination is of record and the statutory duty to assist the appellant has been met. I. Service Connection for Lumbosacral Strain In order to be entitled to service connection, the evidence must reflect that a disease or injury, resulting in chronic disability, was either incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (1991). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." Continuity of symptomatology is required only when the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact that chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1994). A review of the service medical records reflects that the appellant was seen at the dispensary in April 1983 complaining of low back pain, especially when bending. The pain had been present for one week. The appellant gave a history of instances of low back pain of 2 to 3 years duration, following exertion. There was a "job history" of heavy lifting for 2 to 3 years. An examination showed no abnormality involving the back. X-rays of the lumbosacral spine were negative. The diagnosis was low back pain, mechanical. Analgesic, anti-inflammatory medication was prescribed. The remaining service medical records reflect no complaint or finding pertaining to the low back. The report of separation medical examination is not of reocrd. The appellant's original application for compensation benefits was received in late February 1991. Of record is a May 1987 application for medical treatment which the appellant completed in conjunction with treatment by a private chiropractor. At that time, the appellant reported that his major complaint was lower back and hip pain. The appellant indicated that his occupation involved lifting. He reported that he was first aware of this problem approximately four years earlier. A VA medical examination was conducted in May 1992. At that time the appellant reported that he injured his back for the first time after a squadron football game in 1983. He reported having back trouble several times while in the military, being seen by military physicians, and being treated with muscle relaxants and pain pills. He stated that he told his examining physician about his back problems during his discharge physical examination. He was not sure whether it was addressed on the physical. After his discharge from active duty, he began working for Lockheed as an aircraft mechanic. After about a year he developed constant low back pain for which he was treated by a chiropractor who told him he had a herniated disc. Since that time, he reported experiencing 2 to 3 episodes of low back pain every year which lasted 2 to 3 weeks, which he attributed at times when he overused or overexerted himself. He reported the pain affected his lower back, and described it as throbbing, but that it resolved with rest. The May 1992 VA examination of his low back revealed no postural abnormalities or fixed deformity. The musculature of his back demonstrated minimal spasm and tenderness diffusely in the lumbar region. The range of motion was essentially normal with forward flexion to 90 degrees, backward extension to 40 degrees, right and left lateral flexion, 40 degrees, and right and left rotation to 45 degrees' each. There was no evidence of pain on motion. There was no neurological involvement noted. X-ray films of the lumbosacral spine were reported to be negative. The diagnosis was intermittent recurring lumbosacral strain. A hearing was held before the undersigned in Columbia, South Carolina, in April 1993. At that time, the appellant testified that his low back problems began following an injury while playing football in 1983, while on active duty. He stated that he sought treatment at that time, and reported that he believed at the time of his separation medical examination, he reported to the examining physician that he had back problems. He stated that he experienced acute exacerbations of the low back pain, 2 to 3 times per year. He further testified that he has received treatment from a private chiropractor, since 1987, for his low back problems. To summarize, the service medical records show that the appellant was treated on only one occasion in 1983 for low back complaints, diagnosed as mechanical low back pain. The separation medical examination report is unavailable through no fault of the apellant. However, he has indicated in his testimony that he believes he reported low back problems at the time of the separation medical examination. The appellant has testified that he has been experiencing exacerbations of the low back pain since the in-service injury. This testimony is deemed to be competent with regard to the symptoms related to his low back disability. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Moreover, this testimony is deemed to be credible by the undersigned as it is consistent with the May 1987 private medical report, dated approximately a year and a half after his release from active duty, at which time he placed the onset of the low back pain four years earlier, approximately in 1983. This is also consistent with the service medical records, and it is significant to note that the private medical treatment report occurred at a time several years prior to the appellant's initial claim for VA benefits. The recent VA examination has confirmed the presence of a recurrent lumbosacral strain which the Board interprets as representing a chronic disorder. The post service medical evidence does establish a continuity of symptomatology relative to the chronic lumbosacral strain. On this basis, it is the Board's judgment that service connection for chronic lumbosacral strain is warranted. II. Increased Evaluation for Reconstruction of the Anterior Cruciate Ligament, Right Knee The RO has assigned a 20 percent evaluation for postoperative residuals, reconstruction of the anterior cruciate ligament of the right knee pursuant to the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, Diagnostic Code 5257 (1994). That Diagnostic Code 5257 provides for the evaluation of other impairment of the knee, to include recurrent subluxation or lateral instability. When the degree of impairment is moderate, a rating of 20 percent is provided. When the knee disability produces severe impairment, a rating of 30 percent is provided. A disability involving the knee may also be evaluated based upon limitation of motion of the right knee. Diagnostic Code 5260 provides for an evaluation in cases where there is limitation of flexion of the leg. When flexion is limited to 60 degrees, a rating of zero percent is provided. When flexion is limited to 45 degrees, a rating of 10 percent is warranted. When flexion is limited to 30 degrees, a rating of 20 percent is provided. When flexion is limited to 15 degrees, a rating of 30 percent is assignable. Diagnostic Code 5261 provides for an evaluation based on limitation of extension of the leg. When extension is limited to 5 degrees, a rating of zero percent is provided. When extension is limited to 10 degrees, a rating of 10 percent is provided. When extension is limited to 15 degrees, a rating of 20 percent is provided. When extension is limited to 20 degrees, a 30 percent evaluation is warranted. A review of the service medical records reflects that the appellant sustained an injury to the anterior cruciate ligament of the right while playing football in September 1982. An arthroscopy of the right knee, performed in October 1982, showed a tear of the anterior cruciate ligament. He was furnished with a knee brace. His right knee symptoms persisted, and in February 1983, he was hospitalized and underwent an anterior cruciate ligament reconstruction. Postoperatively, there were no complications. The appellant was put in a cast brace. In March 1983, he was seen at the dispensary, at which time the cast brace was off. In April 1983 it was reported that the Lockman's test and pivot test were negative. The anterior drawer sign was also negative. The impression was that the appellant was doing well. The appellant was seen at a VA outpatient clinic in March 1991, complaining of a painful right knee. A VA orthopedic examination was performed in May 1992, indicating that, following a football injury, he underwent anterior cruciate ligament reconstruction involving the right knee. Since the surgery, he stated that he had done pretty following completion of his rehabilitation. He reported soreness when he walked, or with prolonged sitting. The pain was usually resolved with rest. He described two recent episodes of popping and buckling over the past three months. The May 1992 VA medical examination showed no swelling or deformity of the right knee. The appellant had some very mild anterior instability of his knee with a plus-one pivot shift exam. Lockman's and anterior drawer test were negative and demonstrated no other instability. There was no particular joint line or patellofemoral tenderness or crepitus. The range of motion of the knee was described as normal with flexion of 150 degrees and extension to zero degrees. X-rays of the right knee demonstrated mild lateral patellar spurring with no femorotibial arthritis. The diagnosis was mild right knee pain, status post right knee anterior cruciate ligament reconstruction with radiographic evidence of mild patellofemoral disease. The appellant was also described as having very mild laxity of the anterior cruciate ligament. The testimony given by the appellant during the April 1993 hearing was confined to the issue of entitlement to service connection for lumbosacral strain. The appellant testified that he worked as a "lead man" for Lockheed in Greenville. His position reportedly required a lot of physical activity, including lifting and climbing in and out of fuel tanks. He stated that when his back was not bothering him, he had no problem with his daily activities. In order to be entitled to an increased evaluation for the postoperative residuals, reconstruction of the anterior cruciate ligament of the right knee, the evidence must reflect that residuals of that surgery results in severe impairment. Although the recent VA examination found anterior cruciate ligament instability involving the right knee, the degree of instability was described as very mild. Additional testing for instability was negative. Additionally, there was no evidence of any swelling nor was there any evidence of any significant tenderness or crepitus involving the right knee. Although there was X-ray evidence of spurring of the right knee, there is no showing of impairment in the range of right knee motion. The Board has considered the appellant's history of two episodes of popping and buckling involving the right knee during the few months prior to the recent VA examination. However, these symptoms, when viewed in conjunction with the clinical findings shown on the examination, do not demonstrate the presence of severe impairment involving the right knee. Accordingly, it is the Board's judgment that a higher evaluation is not warranted for the postoperative residuals of reconstruction of the right anterior cruciate ligament. In rendering this determination, the Board has considered all pertinent aspects of 38 C.F.R. Parts 3 and 4 as required by the United States Court of Veterans Appeals in Schafrath v. Derwinski, 1 Vet.App. 589 (1991). However, the pertinent sections do not provide a basis which permits an increased evaluation for the service-connected right knee disability. Specifically, there is no evidence of record which shows the presence of such an unusual or exceptional disability picture, presenting such related factors as marked interference with employment or frequent periods of hospitalization as to warrant an extraschedular evaluation pursuant to 38 C.F.R. § 3.321 (1994). Additionally, the evidence does not demonstrate that the degree of impairment resulting from the postoperative residuals, reconstruction of the anterior cruciate ligament of the right knee, more nearly approximates the criteria for the next higher evaluation. As previously discussed, the primary abnormality found during the examination was mild instability of the anterior cruciate ligament and spurring involving the right knee. These findings and the appellant's symptoms have been contemplated in the current 20 percent evaluation. 38 C.F.R. § 4.7 (1994). Additionally, the evidence is not in equipoise and the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (West 1991). ORDER Service connection for lumbosacral strain is granted. An increased evaluation for postoperative residuals, reconstruction of the anterior cruciate ligament of the right knee, is denied. J.F. GOUGH 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.