BVA9507250 DOCKET NO. 90-29 863 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a rating in excess of 10 percent for postoperative residuals of fracture, right patella, with degenerative joint disease and X-ray evidence of degenerative joint disease of the left knee. 2. Entitlement to a rating in excess of 10 percent for postoperative residuals of fracture, left ulna. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty for a total of 27 years and 3 months prior to service retirement in September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of April 1989 from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This case was previously before the Board in February 1991, in February 1992, in November 1992 and in December 1993, and was Remanded to the RO on each occasion for additional development of the medical evidence of record, including VA orthopedic, neurologic and radiographic evaluations. During the pendency of this appeal, the evaluation assigned for the left ulna fracture residuals was increased from a noncompensable level to 10 percent, effective October 1, 1988. The requested development has been completed and the case is now before the Board for final resolution of the issues on appeal. The veteran's representative has called attention to a procedural discrepancy, noting that when the RO last returned the case to the Board in February 1995, the case was not first reviewed by the veteran's local representative and the veteran and his representative were not notified of the transfer action as required by 38 C.F.R. § 19.36 (1994). In view of the fact that the veteran and his representative were provided a supplemental statement of the case with a cover letter stating that the case was to be returned to the Board for appellate review, we find that the cited omission has not resulted in any prejudice to the veteran. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that each of the disabilities at issue is more disabling than currently evaluated and that the severity of the symptoms of his bilateral knee and left ulnar disabilities warrants assignment of increased disability evaluations. It is contended that the veteran experiences joint pain in both knees and at his left ulna fracture site during weather changes as well as stiffness, popping, and intermittent pain in the right knee on weight bearing. It is contended that the veteran experiences some pain on palpation at the left ulna fracture site and numbness in the dorsum of his left hand. 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 claim for a rating in excess of 10 percent for postoperative residuals of a right patella fracture, with degenerative joint disease and X-ray evidence of degenerative joint disease of the left knee. It is the further decision of the Board that the preponderance of the evidence is against the claim for a rating in excess of 10 percent for postoperative residuals of fracture of the left ulna. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. The veteran's service-connected postoperative residuals of a right patella fracture are currently manifested by patellofemoral crepitus, a slight, noncompensable limitation of knee flexion and X-ray evidence of degenerative disease of the right knee joint. 3. The veteran's service-connected left knee disability is currently manifested by X-ray evidence of degenerative changes of the knee joint, without objective clinical findings of limitation of motion, instability, subluxation, or other impairment of function. 4. The veteran's service-connected postoperative residuals of a left ulna fracture are currently manifested by an angular deformity of the ulna at the fracture site with pain on palpation, and a mild left ulnar neuropathy confirmed by electromyographic studies. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for postoperative residuals of a right patella fracture with degenerative disease and X-ray evidence of degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, Codes 5003, 5010, 5057(1994). 2. The criteria for an evaluation in excess of 10 percent for residuals of a left ulna fracture with mild ulnar neuropathy have not been met. 38 U.S.C.A. § 1155, 5107(a) (West 1991); 38 C.F.R. § Part 4, Codes 5211, 8746 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claims are plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), which mandates a duty to assist the veteran in obtaining all pertinent evidence in support of his claims. Our review of the record in this case shows that the RO has obtained the veteran's complete service medical records, that he has been afforded a personal hearing on appeal, and that the case has been remanded to the RO on four occasions for additional development of the medical evidence of record. On appellate review, we see no areas in which additional development might be productive. Factual and Procedural History The veteran's service medical records show that he sustained injuries which included a fracture of the left ulna and a fracture of the right patella requiring excision of the inferior pole of the patella and repairs to the quadriceps tendon in a November 1973 motor vehicle accident. A report of X-ray examination in December 1987 disclosed symmetrical degenerative changes in both knees. In accordance with 38 C.F.R.§ § 4.1, 4.2, 4.41, and 4.42 (1994), and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected left ulna and bilateral knee disabilities, the disabilities for which entitlement to increased ratings is asserted. The Board has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of the remote clinical history and findings pertaining to the disabilities for which entitlement to increased ratings is asserted. A rating decision of April 1989 granted service connection for, inter alia, postoperative residuals of fracture, right patella, with degenerative joint disease, evaluated as 10 percent disabling, and for residuals of fracture of the left ulna, evaluated as noncompensably disabling. The veteran subsequently initiated the instant appeal seeking increased ratings for his right knee and left ulna disabilities. At a personal hearing on appeal held at the RO in December 1989, the veteran raised the additional issue of entitlement to service connection for a left knee disorder. He described the symptoms of his bilateral knee disorders and his left ulna disability. A transcript of the testimony is of record. A rating decision of January 1990 granted service connection for degenerative joint disease of the left knee, assigning a noncompensable evaluation and rating his bilateral knee disabilities, in combination, as 10 percent disabling. VA outpatient clinic records dated in December 1989 show that the veteran was seen with complaints of pain and giving way of the left knee. X-ray examination of the knees was essentially normal. Pursuant to a February 1991 remand order of this Board, a VA neurologic evaluation was conducted in April 1991. That examination disclosed, in pertinent part, a subjective decrease in sensation to light touch, pinprick and vibration over the dorsum of the left hand. The case was again remanded to the RO in February 1992 for another neurological evaluation. A report of VA neurological evaluation conducted in April 1992 revealed normal muscle bulk, tone and strength in the upper and lower extremities, bilaterally, and sensation was reportedly intact. Following another remand order dated in November 1992, a VA orthopedic examination was conducted in February 1993. The examination report cited the veteran's history of sustaining various injuries in an inservice motor vehicle accident, as well as his complaints of left arm and bilateral knee pain during cold weather and intermittent numbness in the left hand. Examination disclosed multiple well-healed scars at the sites of his left ulna and right knee injuries, together with palpable crepitus in both knees. Motor examination disclosed normal muscle tone and strength in both upper and lower extremities with no evidence of atrophy. No pathologic reflexes were found. Sensory examination revealed decreased sensation to pinprick at the wound scars, in the left little finger, and on the medial surface of the left hand. Tinel's sign was negative over the left cubital fossa. The clinical impression was status post right knee injury without evidence of specific neurological injury or reflex abnormalities; status post left ulna fracture with evidence of some local cutaneous fiber interruption attributed to laceration and surgery. The examiner further noted evidence of a possible median neuropathy at the left wrist, manifested by a positive Tinel's sign at the wrist, complaints of numbness and tingling in the hand, and decreased sensation over the left little finger, all suggestive of possible ulnar nerve injury. Diagnostic electromyography was recommended but not performed. A report of VA orthopedic examination conducted in January 1994 cited the veteran's complaints of a popping sensation and pain on weight bearing in the right knee, pain in the left forearm on weather changes, and numbness and tingling in the left hand. Physical examination disclosed a full range of motion in both knees, without instability. Mild patellofemoral crepitation was noted in the right knee, while Lachman's and drawer signs were negative. The right patella was quite bumpy on the surface, and there was some pain to palpation over the anterolateral and lateral joint line. Examination of the left forearm disclosed a well-healed incision over the ulna, with a palpable step off but no motion at the fracture site. The fracture site was nontender, and a full range of motion was present at the left elbow and wrist. Some decreased sensation in the entire left hand was noted. The orthopedic diagnoses included status post right patella fracture, with anterior and anterolateral knee pain possibly representing post-traumatic changes in the under surface of the patella versus degenerative joint disease of the knee joint itself; and status post open reduction and internal fixation of the left ulna currently causing minimal difficulty. A report of VA neurologic evaluation in January 1994 cited the veteran's complaints of bilateral knee pain and some numbness of the dorsum of the left hand. Examination disclosed a decrease to pinprick on the dorsum of the left hand bearing the distal fingers and going to approximately 2 centimeters proximal to the wrist. The remainder of the sensory examination was normal to pinprick, touch, vibration and position throughout the body. No motor or reflex deficits were found. The examiner noted that the veteran had not had the previously requested electromyographic testing. He noted, in summary, that the neurological evaluation disclosed evidence of a left superficial radial, i.e., sensory branch injury, but no other evidence of neuropathy such as ulnar neuropathy, carpal tunnel syndrome, or evidence of a radiculopathy affecting either the arms or the legs. He expressed the opinion that electromyographic testing would be of no benefit in evaluation of the veteran's superficial radial nerve lesion. In December 1993, the Board again remanded the case to the RO for additional development of the medical evidence of record, to specifically include obtaining a report of electromyographic testing of the left upper extremity, as well as X-ray studies of the left upper extremity and right patella. A report of VA orthopedic examination conducted in August 1994 cited the history of injury to the veteran's right knee and left ulna, as well as his current complaints involving both knees and the left ulna. Examination of the right knee disclosed that flexion was limited to 120 degrees and some patellofemoral crepitus was found. Patellofemoral tracking was good and ligaments were stable with no evidence of meniscal tear. A transverse surgical incision was well healed and there was no evidence of effusion. Palpable osteophytes were noted around the patella. Examination of the left knee disclosed a full range of motion, good patellofemoral tracking and stable ligaments, with no signs of effusion or meniscal tear. Examination of the left arm revealed full flexion and extension at the elbow and full flexion, extension, pronation, and supination at the wrist. A palpable angular deformity of the ulna was noted, somewhat tender to palpation. X-ray examination disclosed patellofemoral degenerative joint disease on the right, with a fair amount of osteophyte formation and mild patella deformity secondary to the old fracture. Radiographic studies of the left knee disclosed some early patellofemoral arthritis and medial joint space narrowing. X-rays of the left ulna disclosed a well-healed angular deformity, but intact distal and proximal joints. The orthopedic assessment was bilateral patellofemoral degenerative joint disease, right worse than left; early medial compartment arthritis on the right; and angular deformity of the ulna causing no functional deficit. A report of a VA neurologic evaluation in August 1994 noted the veteran's past surgical history and current complaints. Neurological examination disclosed normal muscle tone and strength throughout the upper and lower extremities. The veteran had a normal gait and station, and a normal toe, heel, and tandem gait. Sensory examination disclosed a patchy decrease to pinprick and light touch in the left hand, most notably in an ulnar distribution. Vibration and proprioception was otherwise intact throughout. The clinical impression was rule out left ulnar neuropathy, and it was noted that an electromyogram of the left upper extremity would be conducted. A report of electromyographic testing in September 1994, disclosed mild slowing at the across-elbow segment. The clinical impression was: Abnormal study, mild left ulnar neuropathy localized to the across-elbow segment. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Entitlement to a Rating in Excess of 10 Percent for Postoperative Residuals of Fracture, Right Patella, with Degenerative Joint Disease and X-ray Evidence of Degenerative Joint Disease of the Left Knee The medical evidence of record shows that the veteran's service- connected postoperative residuals of fracture, right patella, with degenerative joint disease are currently manifested by limitation of knee flexion to 120 degrees, irregularity of the right patella, and X-ray evidence of degenerative joint disease of the right knee joint. The Schedule for Rating Disabilities provides that limitation of flexion of either leg to 60 degrees warrants a noncompensable evaluation, while a 10 percent evaluation requires that flexion be limited to 45 degrees. 38 C.F.R. Part 4, Code 5260 (1994). It is clear, therefore, that a compensable evaluation for the veteran's service-connected right knee disorder is not warranted on the basis of limitation of flexion of the right knee. The RatingSchedule further provides that arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. Part 4, Code 5010 (1994). It is further provided that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. These 10 percent evaluations are combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. Part 4, Code 5003. The Rating Schedule further provides that a slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation while a 20 percent evaluation requires moderate impairment and a 30 percent evaluation requires severe impairment. 38 C.F.R. Part 4, Code 5257. As the veteran's limitation of right knee motion is not of a compensable degree and neither recurrent subluxation or lateral instability are demonstrated, the veteran is entitled to no more than a 10 percent evaluation based upon his degenerative arthritis of the right knee joint. Entitlement to a Compensable Evaluation for Degenerative Joint Disease of the Left Knee Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joints involved. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. Part 4, Code 5003. The combined evaluation of 10 percent currently assigned for the veteran's degenerative joint disease of both knees reflects application of 38 C.F.R. Part 4, Code 5003, cited above, which provides that in the absence of limitation of motion a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major or minor joints. The veteran's degenerative joint disease of the right knee produces a noncompensable limitation of motion and a 10 percent evaluation based on X-ray evidence of degenerative arthritis of that joint is in effect. Further, the veteran's degenerative joint disease of the left knee is not currently manifested by limitation of motion, recurrent subluxation, lateral instability or other objective evidence of impairment of function. For that reason, a compensable evaluation for the veteran's service-connected degenerative joint disease of the left knee is not warranted. Entitlement to a Rating in Excess of 10 Percent for Postoperative Residuals of Fracture of the Left Ulna The Rating Schedule provides that a 10 percent evaluation is warranted for malunion of the ulna of the minor upper extremity with bad alignment. A 20 percent evaluation is warranted for nonunion of the ulna of the minor upper extremity in the lower half, or in the upper half with false movement but without loss of bone substance or deformity. 38 C.F.R. Part 4, Code 5211 (1994). The Rating Schedule further provides that peripheral nerve neuralgia is usually characterized by a dull and intermittent pain. When it occurs in a typical distribution so as to identify the nerve involved, it is rated on the scale provided for the evaluation of injury of that nerve with a maximum evaluation equal to the raring for moderate incomplete paralysis of the nerve. The scale for the evaluation of injury of the ulnar nerve is found in 38 C.F.R. Part 4, Code 8516. 38 C.F.R. Part 4, § 4.124 and Code 8716 (1994). The record discloses that the veteran is right-handed. A 10 percent evaluation is warranted for mild incomplete paralysis of the ulnar nerve of the minor upper extremity. A 20 percent evaluation requires moderate incomplete paralysis. 38 C.F.R. Part 4, Code 8516 (1994). The medical evidence of record demonstrates that the veteran has a well-healed but poorly aligned fracture of the left ulna. There is no clinical evidence of nonunion, false movement, or loss of bone substance, and a rating in excess of 10 percent is not warranted on that basis. The veteran's postoperative residuals of fracture of the left ulna are further manifested by a left ulnar neuropathy producing decreased sensation in the dorsum of the left hand. These findings are indicative of the presence of a mild incomplete paralysis of the ulnar nerve of the left (minor) upper extremity. Our review of the medical record in this case fails to disclose a moderate incomplete paralysis or severe incomplete paralysis of the ulnar nerve of the minor upper extremity. In the absence of such findings, a rating in excess of the currently assigned 10 percent evaluation, based upon mild incomplete paralysis of the ulnar nerve of the minor upper extremity, is not warranted. In evaluating the ratings assigned for the disabilities at issue, consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, including § 4.40, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, we find that the evidence discussed above does not suggest that the disabilities at issue present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant an assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). For example, the disabilities at issue did not recently require frequent periods of hospitalization nor do they represent marked interference with employment that has not already been contemplated by the current evaluations. ORDER A rating in excess of 10 percent for postoperative residuals of fracture, right patella, with degenerative joint disease and X- ray evidence of degenerative joint disease of the left knee is denied. Entitlement to a rating in excess of 10 percent for postoperative residuals of fracture, left ulna, is denied. ROBERT E. SULLIVAN 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 (CONTINUED ON NEXT PAGE) 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.