BVA9508182 DOCKET NO. 92-55 730 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an increased rating for the residuals of injury to the left knee, currently evaluated at 10 percent. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. W. Fabian, Associate Counsel INTRODUCTION The veteran had active duty for training from June 6 to June 20, 1981; from June 22 to June 26, 1981; and from June 29 to July 3, 1981. This case was previously before the Board of Veterans' Appeals (Board) in April 1992. At that time the case was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for additional development. That development has been completed and the case returned to the Board for a determination. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the condition of his left knee has gotten worse and that it should be evaluated at 20 percent because of pain, weakness, and instability in the knee. He cannot walk far, cannot run or jump, must drive cars with automatic transmissions, and has difficulty kneeling, squatting, and using stairs. The veteran further claims that the problems that he has with his knee have caused him to be absent from work many times. 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 evidence is in support of the veteran's claim for an increased evaluation for the 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 residuals of an injury to the left knee are currently manifested by swelling, muscle atrophy, ligament laxity, medial instability, crepitus, minor degenerative joint disease and complaints of pain, with no limitation of motion, representing no more than a moderate impairment. CONCLUSION OF LAW The criteria for an evaluation of 20 percent have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.59, 4.71, Plate II, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon review of the record, the Board concludes that the veteran's claim is well grounded within the meaning of the statutes and judicial construction. See 38 U.S.C.A. § 5107(a) (West 1991). The VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. Id. The pertinent evidence pertaining to the issue on appeal consists of the veteran's service medical records, VA treatment records, and the reports of VA examinations conducted in January 1991, June 1993, and March 1994. The Board concludes that all relevant data has been obtained for determining the merits of the veteran's claim. The VA has, therefore, fulfilled its obligation to assist the veteran in the development of the facts of his case as required by 38 U.S.C.A. § 5107(a). Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1994). The average impairment as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disabilities specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. Id. The determination of whether an increased evaluation is warranted is to be based on review of the entire evidence of record. See Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. In evaluating joints, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. See 38 C.F.R. § 4.45. Diagnostic Code 5257 for impairment of a knee involving recurrent subluxation or lateral instability of the knee provides a 10 percent evaluation for slight impairment, a 20 percent evaluation for moderate impairment, and a 30 percent evaluation for severe impairment. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. With any form of arthritis, painful motion is an important factor of disability if supported by objective findings. See 38 C.F.R. § 4.59. It is the intent of the regulations to recognize actually painful, unstable, or malaligned joints as entitled to at least the minimum compensable rating for the joint. Id. The veteran's service medical records show that in June 1981 he injured his left elbow and left knee in a fall from a bulldozer. He received treatment for the injury at a VA medical facility. The veteran was granted service connection for the residuals of trauma to the left knee in a rating determination issued in November 1983. The rating determination was based on VA treatment records, including an X-ray taken in August 1981 that revealed no evidence of acute bone lesions or osteoarthritic changes. The soft tissues were unremarkable. The injury was assessed as a left patellar dislocation and the left knee was put in a cast from August to September 1981. A physical examination conducted in September 1981 revealed mild effusion, tenderness on all aspects of the knee, and full range of motion. A physical examination conducted in October 1981 showed tenderness and swelling in the lateral joint compartment and the veteran was given a cane to use. An examination in March 1982 revealed that the left knee had full range of motion but that the veteran was still using the cane to ambulate. A physical therapy note from March 1982 indicates that the left quadriceps muscle was at 80 percent of muscle strength. The left thigh measured 37 1/2 centimeters and the right thigh measured 38 centimeters. A VA treatment note from May 1982 shows that the veteran complained of pain in the left knee. Physical examination revealed no atrophy, with tenderness to palpation on the lateral aspect of the left knee. Quadriceps strength was at 80 percent. The report of a VA examination conducted in March 1983 shows that the veteran was walking with a cane in his right hand and that he was using a left knee brace. The left knee could be flexed to 135 degrees compared to 140 degrees on the right. The circumference of the left thigh measured 16 inches, compared to 16 1/4 inches on the right. The left calf muscle measured 13 inches, compared to 13 1/2 inches on the right. The left knee measured 13 1/2 inches, compared to 13 3/4 inches on the right. The report provides a diagnosis of residuals of trauma to the left knee, consisting of tenosynovitis, short left hamstring secondary to the tenosynovitis, moderate, and moderate atrophy of the left leg due to the tenosynovitis. In conjunction with a VA examination conducted in October 1984 the veteran reported that he had received physical therapy for his left knee for about one year after the injury occurred. The veteran complained of pain in the knee with walking and episodes of claudication. Physical examination revealed that the veteran had normal erect posture and a left limping gait. He used a cane in the left hand. There was no evidence of deformity in the knee. There was evidence of thigh muscle atrophy; the left thigh measured 40 centimeters and the right thigh measured 42 centimeters. There was mild to moderate weakness of the thigh muscles, mainly the quadriceps, with tenderness in the sub- patellar region and crepitation with passive movement of the patella, and partial, passive subluxation of both patellae. There was complete range of motion of the left knee joint. X-ray revealed no bony or articular abnormalities. The report of a VA examination conducted in January 1991 shows that the veteran complained of pain and swelling in the left knee with prolonged standing or walking. He was unable to jump or run. Physical examination showed the veteran to walk erect with a left limping gait. There was moderate atrophy of the thigh muscle, evidence of soft tissue swelling, tenderness to pressure over the patella, crepitus and a snapping sound with range of motion. There was no limitation of motion. The report provides diagnoses of left knee injury with chondromalacia of the patella and degenerative joint disease. In conjunction with a VA examination conducted in June 1993 the veteran complained of pain in the left knee and that the knee failed while walking and walking over uneven surfaces. Physical examination showed that he walked erect with a left leg limp and that he wore a supporting brace on the left knee. There was no evidence of muscle atrophy, but mild lateral instability of the knee with 5 degrees of recurvatum and crepitus with movement were evident. Flexion of the left knee was normal. X-rays revealed minimal degenerative joint disease, otherwise unremarkable. The report of a VA examination conducted in March 1994 shows that the veteran complained of locking of the left knee, anterior pain, and swelling. Physical examination showed that there was genu valgus deformity of the left knee and ligament laxity with a questionable Adson sign. There was medial instability on stress valgus. The veteran had a positive patellar grinding test on the left knee and crepitus. Range of motion of the left knee was 140 degrees of flexion and zero degrees of extension. A magnetic resonance imaging (MRI) test was performed in conjunction with the examination. The resulting diagnoses were left knee genu valgus; status post left patellar dislocation in 1981; left patella tendonitis; minimal degenerative joint disease of the left knee by X-ray; tear of the posterior horn of the left medial meniscus and extension into the body; subchondral defect of the patella representing a sequela from previous trauma; and a cystic lesion in the posterolateral aspect of the knee, probably representing a ganglion cyst. The March 1994 examination showed that the range of motion of the left knee was flexion of 140 degrees and extension of zero degrees. According to 38 C.F.R. § 4.71, Plate II, this represents the normal range of motion of the knee. Because the evidence indicates that there is no limitation of motion in the left knee, an evaluation under Diagnostic Code 5260 for limitation of flexion or Diagnostic Code 5261 for limitation of extension is not appropriate. Evaluation under Diagnostic Code 5003 for degenerative arthritis is based on limitation of motion, which is not shown. Therefore, an evaluation under Diagnostic Code 5003 is not warranted. Under Diagnostic Code 5257, a 10 percent evaluation applies if the residuals of the left knee injury are considered slight and a 20 percent evaluation applies if the residuals are moderate. Physical examination revealed evidence of swelling, moderate muscle atrophy, genu valgus deformity, ligament laxity, medial instability, and crepitus. Diagnostic testing revealed the presence of patellar tendonitis, minimal degenerative joint disease, tear of the medial meniscus and extension into the body, subchondral defect of the patella, and a cystic lesion in the posterolateral aspect of the knee. The treatment records indicate that the veteran has complained of pain and instability in the knee. These symptoms are consistent with a moderate degree of impairment. The symptoms do not represent a severe impairment because there is no limitation of motion; no evidence of subluxation; and although the evidence shows that there is ligament laxity and "some" medial instability, it does not indicate that the ligament laxity or lateral instability is severe. An increased evaluation cannot be assigned under 38 C.F.R. § 4.40 or 4.59, because the veteran's pain and functional limitation is contemplated by a 20 percent evaluation, and there is no medical indication that any pain he experiences or functional impairment is above that contemplated by a 20 percent evaluation. Although the veteran asserts in the appeal that he has had to miss a great deal of work because of his knee disorder, he failed to provide information on his employment history when he was requested to do so. Therefore, there is no evidence that the case presents an exceptional or unusual disability picture, as evidenced by marked interference with employment or frequent hospitalizations due exclusively to the service-connected injury, to warrant an extra-schedular rating. See 38 C.F.R. § 3.321(b). A compensable evaluation under 38 C.F.R. Part 4 contemplates time lost from work due to exacerbations of a disability. 38 C.F.R. § 4.1 (1994). For these reasons the Board determines that the evidence supports an evaluation of no more than 20 percent. ORDER A 20 percent evaluation for residuals of injury to the left knee is granted, subject to the regulations governing the payment of monetary benefits. WILLIAM J. REDDY 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.