BVA9504620 DOCKET NO. 92-17 320 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether there was clear and unmistakable error in a rating decision of December 1968, which denied service connection for residuals of a left knee injury. 2. Entitlement to an effective date prior to January 21, 1988, for the award of service connection for residuals of a left knee injury. 3. Entitlement to an increased (compensable) rating for malaria. 4. Entitlement to an increased (compensable) rating for hemorrhoids. 5. Entitlement to an increased (compensable) rating for residuals of a left knee injury. 6. Entitlement to an increased (compensable) rating for residuals of a gunshot wound to the right loin area. 7. Entitlement to a compensable disability evaluation under the provisions of 38 C.F.R. 3.324 (1993). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from July 1945 to July 1965. By rating decision in December 1968, service connection for residuals of an injury to the left knee was denied on the basis that there were no abnormal findings with respect to the left knee. The veteran was notified of that decision, and his appellate rights, but did not initiate an appeal and it became final. On January 21, 1988, the veteran submitted a statement indicating that he desired to reopen his claim for service connection for his left knee. A May 1992 rating decision implemented an April 1992 decision by the Board of Veterans' Appeals (Board) in granting service connection for residuals of an injury to the left knee from January 21, 1988. The current matter comes before the Board on appeal from June 1992 and May 1994 decisions by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). CONTENTIONS OF APPELLANT ON APPEAL It is contended that clear and unmistakable error was committed in the December 1968 rating decision. It is asserted that the veteran's May 1965 service retirement examination noted relaxation of the collateral ligaments, as well as left knee symptomatology being noted during the November 1968 VA examination. It is also contended that the veteran has multiple noncompensable disabilities which interfere with his employment to a sufficient degree that a compensable evaluation under the provisions of 38 C.F.R. § 3.324 (1993), should be assigned. It is asserted that the veteran's left knee causes him pain and a 10 percent evaluation should be assigned for slight impairment. 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 there was no clear and unmistakable error in the December 1968 rating decision, and that a preponderance of the evidence is against the assignment of an effective date prior to January 21, 1988, for the award of service connection for residuals of a left knee injury, as well as being against increased ratings for malaria, hemorrhoids, residuals of a gunshot wound to the right loin area, or on the basis of multiple noncompensable disabilities, and that the record supports the assignment of a 10 percent evaluation for residuals of an injury to the left knee. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The unappealed December 1968 rating decision which denied service connection for residuals of an injury to the left knee was supported by the evidence then of record and was a reasonable exercise of rating judgment. It was not appealed. 3. The veteran reopened his claim for entitlement to service connection for residuals of an injury to the left knee by submitting a statement in January 1988. 4. The veteran has had no sequelae or recurrence of his malaria. 5. The veteran's hemorrhoids have been surgically removed without recurrence. 6. The veteran's left knee disability is manifested by occasional swelling, pain, patellofemoral crepitus, tenderness, range of motion from 0 to 130 degrees, and degenerative joint disease. 7. The residuals of a gunshot wound to the left loin are manifested by a scar which is not tender and not bound down, and subjective complaints of soreness and tenderness over the area occasionally. 8. In light of this decision with regard to the left knee, a compensable evaluation for one of the veteran's service-connected disabilities exists, causing the veteran not to have all noncompensable disabilities. CONCLUSIONS OF LAW 1. The December 1968 rating decision was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 1110, 1131 7105 (West 1991); 38 C.F.R. § 3.105(a) (1993). 2. An effective date prior to January 21, 1988, for service connection for residuals of an injury to the left knee is not warranted. 38 U.S.C.A. §§ 5107, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.400(b)(2), 20.302 (1993). 3. Increased (compensable) ratings for malaria, hemorrhoids, and residuals of a gunshot wound to the right loin are not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, Part 4, Codes 6304, 7336, 7804, 7805 (1993). 4. A 10 percent evaluation for residuals of an injury to the left knee is warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, Part 4, Code 5003, 5257, 5260, 5261 (1993). 5. A compensable evaluation for multiple noncompensable disabilities is not warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.324 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Clear and Unmistakable Error It has been contended that the December 1968 rating decision which denied the veteran service connection for residuals of an injury to the left knee was clearly and unmistakably erroneous. Previous determinations which are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (1993). The United States Court of Veterans Appeals has held that clear and unmistakable error is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of the error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Russell v. Principi, 3 Vet.App. 310, 313 (1992); Fugo v. Brown, 6 Vet.App. 40, 44 (1993). The Board must address this claim by evaluating the evidence of record at the time of the rating action in question. Service medical records are silent for complaint, finding, or treatment with respect to the left knee until August 24, 1955. At that time the veteran was seen with the complaint that he had twisted his left knee. He was seen again on August 25, 1955. Examination at that time revealed mild swelling, inability to extend beyond 20 degrees, and a positive Apley's test for torn medial meniscus. The diagnosis was internal derangement of the left knee. The veteran was hospitalized on August 26, 1955, with a diagnosis of contusion of the left knee joint. Range of motion at that time was accomplished from 60 to 170 degrees. There was point tenderness over the medioanterior aspect and Apley's test was positive medially. The veteran was treated conservatively with elevation of the left leg on a pillow and application of ice packs. He improved rapidly during the next two days and the last examination revealed that the swelling and effusion had subsided. He was discharged on September 6, 1955, to limited duty with a six-week profile. A December 1955 clinic record reflects that there had been considerable improvement, and that Apley's testing was negative. The veteran was discharged from further care for his left knee. Remaining service medical records are silent for complaint or treatment with respect to the veteran's left knee. The report of a June 1961 service examination and report of medical history states that the veteran reported a left knee injury in 1955 which was asymptomatic. The report of the examination states that his lower extremities and musculoskeletal system were normal. The report of an April 1964 service examination, and report of medical history, reflects no complaints, findings, or treatment for a left knee disability. Examination of the lower extremities and musculoskeletal system was indicated to be normal. The report of the veteran's May 1965 retirement examination and report of medical history states that the veteran reported trauma to his left knee in 1954 with one locking episode and intermittent pain from 1954 to 1965. The report of the examination states that there was mild relaxation of the collateral ligaments of the left knee. The report of a November 1968 VA examination notes the August 1955 injury to the veteran's left knee. It states that on examination both knees measured equally and range of motion was normal. It indicates that there were no abnormal findings with respect to the left knee. It indicates that there was a negative history of locking or instability in the left knee. It notes that the veteran reported that sometimes there was an aching along the medial aspect of the left knee. The diagnoses included residuals of an old contusion of the left knee, very mild, manifested by occasional aching sensation. The above service medical records and report of VA examination were of record at the time of the December 1968 rating decision which found that there were no abnormal findings with respect to the left knee and no history of locking or instability, and therefore no residuals to an injury of the left knee. The current contentions are, in substance, that the report of the service retirement examination which states mild relaxation of the collateral ligaments of the left knee, and the report of the November 1968 VA examination which states diagnoses including residuals of an old contusion of the left knee, very mild, manifested by occasional aching sensation, demonstrate that the veteran had residuals to the 1955 injury to his left knee. However, service medical records also reflect that the veteran had no further treatment for his left knee after December 1955. It was noted at the time of the June 1961 service examination that he had a prior injury to the left knee, but it was also noted that this was asymptomatic. The report of the April 1964 service examination does not even include any reference to the veteran's left knee. The report of the November 1968 VA examination reflects no objectively demonstrated abnormality with respect to the left knee. On the basis of service medical records which reflect no treatment for the veteran's left knee following December 1955, and the November 1968 VA examination which found no abnormality on objective examination with respect to the left knee, it cannot be said that the report of the veteran's May 1965 retirement examination which notes mild relaxation of the collateral ligaments in the left knee, or the veteran's report of occasional aching along the medial aspect of the left knee, compels the conclusion, to which reasonable minds could not differ, that the result of the December 1968 rating decision would have been manifestly different than it was. That decision was supported by the objective clinical findings reported as a result of the November 1968 VA examination, as well as the absence of any treatment for symptomatology following December 1955. Therefore, the December 1968 rating decision may not be set aside on the basis of being clearly and unmistakably erroneous. 38 U.S.C.A. §§ 1110, 1131, 7105; 38 C.F.R. § 3.105(a). II. Earlier Effective Date As previously noted a December 1968 rating decision denied service connection for residuals of a left knee disability, and although notified of his appellate rights, the veteran did not appeal that decision and it became final. The effective date of an award of service connection based upon a reopened claim is the date of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). Following the December 1968 denial, the veteran did not attempt to reopen his claim for service connection for residuals of an injury to the left knee until he submitted his statement on January 21, 1988. It is neither asserted nor shown that any informal or formal attempt to reopen his claim for service connection for a left knee disability was made prior to January 21, 1988. Therefore, with consideration of the Board's decision with respect to clear and unmistakable error in the December 1968 rating decision, the earliest date for which service connection could be granted for residuals of an injury to the left knee is January 21, 1988, the date assigned by the May 1992 rating decision, since that is the date the veteran reopened his claim after final disallowance. III. Malaria, Hemorrhoids, Gunshot Wound Service medical records reflect that the veteran sustained a lacerating gunshot wound to the right hip in May 1951. The wound was debrided and, in June 1951, was healing well except for a 1/2-centimeter sinus opening and some inflammation. There was no artery or nerve involvement. On June 18, 1951, the wound was well healed with no limitation of motion. The record indicates that the veteran was ready for duty. Remaining service medical records are silent for complaint or treatment with respect to residuals of the gunshot wound sustained in 1951. The report of the veteran's May 1965 service separation examination states that the veteran had mild hemorrhoidal tags and a scar which was residual to a fragment wound. An August 1951 letter from David B. Flavan, M.D., a private physician, states that he had seen the veteran in August 1951 for treatment of a typical attack of malaria. It states that the veteran responded well to treatment and was being continued on a suppressive dose of medication. An August 1968 statement from Leo J. LeBlanc, M.D., a private physician, states that the veteran had undergone a hemorrhoidectomy in April 1967 with no complications. The report of a November 1968 VA examination indicates that the veteran reported that he had malaria in 1950 in Korea. He indicated that he was treated by a civilian physician and never hospitalized as a patient for malaria. Hemorrhoids were not present. There was a 5 1/2-inch S-shaped scar on the right side laterally 1 inch above the right iliac crest. The scar was not tender, nor was it bound down. The diagnoses included 5 1/2-inch healed asymptomatic scar in the right loin area which was residual to a gunshot wound, and history of malaria, treated, recovered, no sequelae. A December 1968 rating decision granted service connection for a scar in the right loin area which was residual to a gunshot wound, malaria, and hemorrhoids, and assigned noncompensable evaluations for each. Those evaluations have remained in effect until the present time. The report of an April 1994 special VA examination states that there were no external hemorrhoids, nor internal hemorrhoids. The diagnosis was hemorrhoids, surgically removed. The report of an April 1994 VA general medical examination states that the veteran reported having had malaria in 1951, but had had no problem since. He reported the gunshot wound on the right flank, and stated that sometimes the muscles would get sore and tender like an ache, but that was the only complaint. Examination revealed no tenderness of the scar which was residual to the gunshot wound. The diagnoses included history of having malaria, with no sequelae or recurrence and residual scar from gunshot wound on the right lumbar area with subjective complaints of soreness and tenderness over the area occasionally. In reaching its decision with respect to the issues of increased ratings for malaria, hemorrhoids and residuals of a gunshot wound to the right loin, the Board has considered the complete history of the disabilities in question as well as the current clinical manifestations and the effect the disabilities may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1993). With respect to the residuals of the gunshot wound the nature of the original injury has been reviewed and the functional impairment which can be attributed to pain or weakness has been taken into account. The veteran has reported that he has an occasional achelike feeling, but he has neither reported, nor has it been demonstrated, that any functional impairment has resulted therefrom. 38 C.F.R. § 4.40. Further, the Board finds that the disability picture is not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that any of these three disabilities have caused marked interference with employment or necessitated frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1) (1993). A 10 percent evaluation is warranted for malaria which has been recently active, with 1 relapse in the past year, or for old cases of malaria with moderate disability. A 30 percent evaluation requires recently active disease with 2 relapses in the past 6 months or old cases with anemia. 38 C.F.R.§ Part 4, Code 6304. A noncompensable evaluation is warranted for mild or moderate external or internal hemorrhoids. A 10 percent evaluation requires large or thrombotic, irreducible hemorrhoids with excessive redundant tissue evidencing frequent recurrences. 38 C.F.R.§ Part 4, Code 7336. A 10 percent evaluation is warranted for superficial scars which are tender and painful on objective demonstration. Scars may be evaluated on the basis of any related limitation of function of the body part which they affect. 38 C.F.R.§ Part 4, Codes 7804, 7805. The criteria for compensable evaluations for any of these three disabilities have not been met or approximated. The evidence reflects that the veteran has had no recurrence or sequelae with respect to his malaria. He had a hemorrhoidectomy in 1967, and current examination reflects that there has been no recurrence of hemorrhoids. The residuals of his gunshot wound are manifested by a scar which is not tender or painful on objective demonstration, nor is the scar bound down to underlying tissue. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.7. IV. Left Knee The clinical history with respect to the veteran's left knee prior to the December 1968 rating decision has been set forth previously and will not be repeated at this time. The report of a January 1991 VA examination, with regard to the veteran's left knee, states that the veteran reported increased pain, popping, cracking, and swelling in cold weather. Examination revealed that the veteran's gait, posture and carriage were normal. He could walk on his toes and heels, and squat completely. He tended to shift some weight to the right lower extremity. The size, contour, and muscle development were normal. There was no swelling, tenderness or deformity with respect to the left knee. There was subpatellar grating noted. Range of motion was full. The ligaments were intact. McMurray's sign was negative. X-rays of the knee were negative for bone or joint pathology. The diagnosis was residuals of a left knee injury, symptomatic, with no functional impairment. An April 1992 Board decision granted service connection for residuals of a left knee injury, and a May 1992 rating decision implemented that Board action, by granting service connection for residuals of a left knee injury from January 21, 1988. A noncompensable evaluation was assigned. That evaluation has remained in effect until the present time. The report of an April 1994 VA orthopedic examination states that the veteran reported occasional left knee pain, frequent swelling, popping when swollen, and pain on stairs. The report indicates that on examination of the left knee there was range of motion from 0 to 130 degrees, mild patellofemoral crepitus, and positive patellar tenderness. There was no instability or joint line tenderness, no swelling, and no deformity. Mild joint space narrowing was indicated as was minimal subchondral sclerosis. The diagnosis was osteoarthritis of the left knee. An April 1994 clinical record of Richard E. Lord, M.D., a private physician, states that the veteran's left knee was his major problem. It indicates that the veteran had an old diagnosis of chondromalacia. It further indicates that the veteran had swelling of his left knee and crepitation of the patella. X-rays revealed slight medial joint compartment narrowing. The impression was early degenerative joint disease of the left knee. Again the Board has considered the complete history of this disability as well as the current clinical manifestations and the effect the veteran's left knee disability may have on his earning capacity. 38 C.F.R. §§ 4.1, 4.2, 4.41. The nature of the original injury has been reviewed and the functional impairment which can be attributed to pain or weakness has been taken into account. The report of the January 1991 VA examination states that there is no functional impairment attributable to the veteran's left knee, and the report of the April 1994 VA orthopedic examination indicates that the veteran ambulates well, squats well, and has no instability. 38 C.F.R. § 4.40. Disability associated with the veteran's left knee is not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that his left knee has caused marked interference with employment or necessitated frequent periods of hospitalization. The record reflects that he has had ongoing intermittent outpatient treatment with respect to the left knee. 38 C.F.R. § 3.321(b)(1). 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 involved. When the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint. 38 C.F.R.§ Part 4, Code 5003. A knee is a major joint. 38 C.F.R.§ Part 4, Code 5002. Slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment. A 30 percent evaluation requires severe impairment. 38 C.F.R.§ Part 4, Code 5257. Limitation of flexion of either leg to 60 degrees warrants a noncompensable evaluation. A 10 percent evaluation requires that flexion be limited to 45 degrees. A 20 percent evaluation requires that flexion be limited to 30 degrees. A 30 percent evaluation requires that flexion be limited to 15 degrees. 38 C.F.R.§ Part 4, Code 5260. Limitation of extension of either leg to 5 degrees warrants a noncompensable evaluation. A 10 percent evaluation requires that extension be limited to 10 degrees. A 20 percent evaluation requires that extension be limited to 15 degrees. A 30 percent evaluation requires that extension be limited to 20 degrees. 38 C.F.R.§ Part 4, Code 5261. Normal full range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R.§ 4.71 (1993) The criteria for a 10 percent evaluation have been met on the basis that there is mild joint space narrowing shown by x-ray, (degenerative joint disease), and limitation of motion. 38 C.F.R.§ Part 4, Code 5003. Although the report of the April 1994 VA examination states that the veteran had full range of motion in his left knee, that range of motion is reported as being from 0 to 130 degrees. Full range of motion for a knee is from 0 to 140 degrees. Therefore, the veteran's left knee lacks 10 degrees of full flexion. An evaluation greater than 10 percent is not for assignment since greater restriction on range of motion is not indicated, nor is instability or subluxation shown. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.7, Part 4, Codes 5003, 5257, 5260, 5261. V. Multiple Noncompensable Disabilities When the veteran initiated his claim, in 1992, for a compensable rating on the basis of multiple noncompensable disabilities, he did not have a compensable evaluation assigned for any of his service-connected disabilities. In light of the Board's decision in assigning a 10 percent evaluation for the veteran's left knee disability the provisions of 38 C.F.R. § 3.324 are no longer for application, since they provide for the granting of a 10 percent rating, not in combination with other ratings, where a veteran has two or more separate permanent service-connected disabilities which have been evaluated as noncompensable. Therefore, a compensable evaluation on the basis of multiple noncompensable disabilities is not warranted. ORDER Clear and unmistakable error in a December 1968 rating decision denying service connection for residuals of an injury to the left knee is not shown and the appeal, with respect to that issue, is denied. An effective date prior to January 21, 1988, for service connection for residuals of an injury to the left knee is denied. Increased ratings for malaria, hemorrhoids and residuals of a gunshot wound to the right loin, are denied. An increased rating for residuals of an injury to the left knee, is granted, to the extent indicated, subject to laws and regulations governing the payment of monetary benefits. A compensable evaluation on the basis of multiple noncompensable disabilities is denied. JEFF MARTIN 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.