Citation Nr: 0000896 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 96-50 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an extraschedular evaluation for post- traumatic joint disease of the right knee, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fetty, Associate Counsel INTRODUCTION The veteran had active service from May 1973 to August 1975 and from October 1978 to October 1983. This appeal arises from a July 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that assigned an increased (10 percent) schedular evaluation for service-connected residuals of non- displaced fracture of the right patella. The veteran appealed for a higher rating and for extraschedular consideration. In November 1997, the Board remanded the case to the RO for additional development. After the requested development was accomplished, the case was returned to the Board. In a May 1999 decision, the Board denied the claim for an increased rating. In that decision, the Board remanded the issue of entitlement to an extraschedular evaluation for the service-connected right knee disability for additional development. The RO has accomplished the requested development to the extent possible and has issued a supplemental statement of the case addressing an extraschedular evaluation under 38 C.F.R. § 3.321(b). The case is now ready for Board adjudication. FINDINGS OF FACT 1. All relevant evidence necessary for equitable disposition of this appeal has been obtained. 2. This disability is not productive of such an exceptional or unusual disability picture as to render impractical the applicability of the regular schedular standard. CONCLUSION OF LAW An extra-schedular rating for post-traumatic joint disease of the right knee is not warranted. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 3.321(b)(1) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The complete factual background of this appeal is contained in the Board's May 1999 decision. According to an October 1998 examination report, the veteran complained of right knee pain, stiffness, locking, giving away, fatigue, and lack of endurance. He reported three to four flare-ups per week lasting 10 to 12 hours each. He estimated that knee pain resulted in losing about 15 days of work in the past year. His knee pain reportedly affected most daily activities. The diagnosis was post-traumatic degenerative joint disease of the right knee patellofemoral joint. In an addendum, the examiner noted that during flare-ups, the pain would result in the veteran's inability to work; however, there was no pathology felt to result in any increased weakness, fatigability, or incoordination secondary to increased pain. Subsequent to the May 1999 Board remand, the RO sent a letter to the veteran requesting that he provide additional information and evidence concerning lost time from work and any other evidence that the knee disability had caused lost time from work. The RO's letter is dated July 16, 1999. The RO further requested that the veteran provide that information as soon as possible, preferably within 60 days. The letter appears to bear the veteran's correct mailing address and has not been returned by the U. S. Postal Service as undeliverable. No further evidence or response was received from the veteran. The RO issued a supplemental statement of the case in September 1999 that considered an extraschedular rating. The cover letter accompanying the supplemental statement of the case informed the veteran that he had an additional 60 days to make any comment. II. Legal Analysis The record shows that the veteran's claim is well grounded, meaning that it is plausible. The Board finds that all relevant evidence for equitable disposition of this claim has been obtained and that no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). 38 C.F.R. § 3.321(b) (1) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disability, an extra-schedular evaluation will be assigned. The Board notes that frequent periods of hospitalization have not been shown or alleged. Neither does the evidence show that this disability has resulted in marked interference with the veteran's employment or that other remarkable factors warranting an extra-schedular rating exist in this case. Although the veteran "estimated" that he lost 15 days of work per year because of knee pain, he did not submit evidence, beyond his original estimate, of any actual work loss due to the knee. The Board notes that a physician has opined that flare-ups of knee pain would preclude working at times. This evidence is favorable; however, again, there has not been any information submitted showing that the knee has actually caused any lost time from work. Some impairment of earning potential is conceded in the 10 percent rating assigned. Beyond that, there has been no showing that the disability is productive of such an exceptional or unusual disability picture as to render impractical the applicability of the regular schedular standard. Neither the veteran's statements nor the medical records show that his service-connected post-traumatic joint disease of the right knee, standing alone, warrants assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1). ORDER The claim for an extra-schedular evaluation for post- traumatic joint disease of the right knee is denied. R. E. SMITH Acting Member, Board of Veterans' Appeals