BVA9502926 DOCKET NO. 92-18 312 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES Entitlement to restoration of a 30 percent evaluation for postoperative residuals of a right knee meniscectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michele M. Florack, Associate Counsel INTRODUCTION The veteran served on active duty from November 1983 to January 1987. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the September 1991 reduction of his evaluation was not warranted. He disagrees that his right knee disorder has improved and asserts that it, in fact, has increased in severity. He claims to have popping and clicking with walking, and pain, swelling, and locking upon increased activity. 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 a preponderance of the evidence is against the claim for the restoration of the 30 percent evaluation for the postoperative residuals of a right knee meniscectomy. 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 right knee has improved; his postoperative residuals of a meniscectomy produce no more than moderate impairment of the knee. CONCLUSION OF LAW Restoration of a 30 percent rating for postoperative residuals of a right knee meniscectomy is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.344, 4.40, 4.45, 4.71, Codes 5257, 5260, 5261 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds initially that the veteran's claim is "well grounded" or plausible within the meaning of 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 the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159 (1993). In that regard, we note that this case was remanded to the RO by the Board in January 1994 for further development. The Board finds that all requested development has been accomplished and the mandated duty to assist has been met in this case. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). Separate diagnostic codes identify the various disabilities. The veteran's right knee disability may be evaluated on the prevailing objectively manifested symptoms such as instability or limitation of particular motions. Moderate impairment of a knee, including recurrent subluxation or lateral instability, warrants a 20 percent evaluation. A 30 percent evaluation requires severe impairment. 38 C.F.R. Part 4, Code 5257 (1993). Limitation of flexion of either leg to 30 degrees warrants a 20 percent evaluation, and a limitation of flexion to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. Part 4, Code 5260 (1993). Limitation of extension of either leg to 15 degrees warrants a 20 percent evaluation. A 30 percent evaluation requires that extension be limited to 20 degrees. 38 C.F.R. Part 4, Code 5261 (1993). The veteran sustained a right knee injury in service, requiring surgery consisting of a right lateral meniscectomy. VA outpatient treatment records from January 1989 reveal that the veteran had complaints of right knee intermittent locking, with moderate pain on movement. On VA examination in December 1989, clicking and crepitation in the right knee were noted on range of motion testing. The right knee had limited extension, from 20 to 90 degrees. Based on the limitation of extension, in February 1990, the RO granted a 30 percent evaluation for the right knee disorder under Diagnostic Code 5261. On VA examination in April 1991, the veteran reported that arthroscopic surgery was performed on the right knee in November 1990. The veteran was employed as a mailman, and his job required much walking. The veteran complained of bilateral knee weakness and locking (the left knee disorder is not service- connected), and pain and stiffness after considerable activity. Upon physical examination of the right knee, no swelling, tenderness, or deformity was noted. There was evidence of old Osgood-Schlatter's disease over the tibial tubercles. The veteran was able to squat to 70 percent of normal and had full range of motion of both knees. The ligaments were intact, and the McMurray sign was negative. There was some grating noted on manipulation of the knees. X-rays showed no evidence of bone or joint abnormality and no significant narrowing of the joint space. The impression was osteoarthritis with no other bone or joint abnormality. The final diagnosis was status postoperative residuals, partial lateral meniscectomy of the right knee, symptomatic, with no functional impairment. In May 1991, the RO proposed to reduce the veteran's evaluation of the right knee from 30 percent to 20 percent. The veteran contested the proposed reduction. In May 1991, at a VA orthopedic clinic, the veteran complained of chronic knee pain. On examination of the right knee, there was full range of motion with no crepitus. There was no ligament laxity, effusion, or joint line tenderness, but slight tenderness was noted around the patella. On follow-up examination in June 1991, the veteran's right knee was nontender with no ligament laxity. An arthrogram of the veteran's right knee in June 1991 revealed the cruciate ligaments to be intact and the menisci were normal in configuration. No soft tissue calcifications or loose bodies were seen. There was no meniscal tear shown. At a personal hearing in August 1991, the veteran reported that he experienced locking, swelling, popping, and clicking of the right knee upon use. He said he believed the April 1991 examination was improper in some aspects. In particular, he claimed that the range of motion testing was not reported accurately. He claimed that he had pain on 25 degrees of flexion of the right knee. He testified that he was employed as a mail carrier, but because of the instability of the right knee had to transfer from a job that required frequent walking to one that required driving. He added that he regularly treated the knee with medication for the swelling and pain, and that he sometimes wore a knee brace. In September 1991, the RO reduced the veteran's evaluation from 30 percent to 20 percent. The representative alleges the that RO failed to apply the correct standard to reduce a disability rating, citing Dofflemeyer V. Derwinski, 2 Vet. App. 277, 279 (1992). In Dofflemeyer, the Court addresses the mandates of 38 C.F.R. § 3.343(a) and (c) and §3.344(a), regulations that require that the VA use a more stringent standard to reduce a disability rating than the standard used to grant one. Sections 3.343(a) and (c) deal with the circumstances necessary for a reduction of a total disability rating, a standard that is inapplicable here. Section 3.344(a) provides that there must be a material and sustained improvement shown which will be maintained under the ordinary circumstances of life (domestic and industrial). Section 3.344 (c) adds that the provisions of § 3.344 are for application to ratings which have continued for long periods at the same level (5 years or more). In this case, the RO's decision is supported by more than one single VA examination, as the April 1991 VA examination findings are corroborated by a subsequent orthopedic clinic evaluation in May 1991 and a follow-up visit report of June 1991. In addition, the former 30 percent evaluation was in effect from December 1989 to June 1991, less than 5 years, making the more stringent standard of the regulation inapplicable here. As to the evidentiary support for the reduction and the claim for an increased rating for the right knee disorder, medical records received on remand do not show that the veteran's right knee has gotten worse; nor do they support an increased evaluation under any code. Newly received evidence includes records from a VA orthopedic clinic where the veteran was seen in February 1993 with complaints of chronic knee pain. Magnetic resonance imaging (MRI) in February 1993 showed a normal right knee. On orthopedic examination of the veteran's right knee in March 1993, there was no swelling, minimal crepitus, diffuse tenderness, no laxity, negative grind, and negative McMurray sign. There was full range of motion of the knee. On VA orthopedic evaluation in September 1993, the veteran reported pain and locking of the right knee. Tenderness and mild patellar crepitus were shown. There was a negative Lachman's sign, negative varus valgus, and negative instability. In October 1993, the veteran's right knee was found to be tender on the joint line, with negative instability, negative drawer, negative Lachman's, and mild patellar crepitus. He was admitted to a VA hospital for complaints of right knee pain and instability. He underwent surgery consisting of right knee arthroscopy with chondroplasty. The RO assigned a 100 percent (temporary total) convalescent rating from the date of the veteran's admission for that hospitalization until December 1, 1993. On VA examination of the right knee in February 1994, there was no swelling or deformity shown. There were mild medial and lateral laxity, apprehension with patellar test, negative grind, and negative drawer sign. Flexion was to 120 degrees, and extension was to 3 degrees. The disability picture presented by the evidence outlined above establishes that the reduction in the evaluation of the veteran's service-connected right knee disorder to 20 percent was proper and in accordance with the clinical data. The 30 percent rating was based on extension of the right knee being limited to 20 degrees. By the time of the RO proposal to reduce the rating, such restriction was no longer present. In fact, repeat examinations showed full extension of the knee was possible. So the basis for the 30 percent rating was no longer present. Furthermore, the clinical data did not show either severe impairment of the knee or limitation of flexion to 15 degrees, so as to warrant an increased (30 percent) rating under the alternative criteria of codes 5257, 5260. While we do not doubt the veteran's sincerity in his testimony regarding the belief that he has severe knee disability, that testimony does not establish that he has the degree of impairment required for a 30 percent rating. VA examinations both prior and subsequent to the hearing provide much more probative evidence on this matter. Furthermore, we note that, while the veteran did exhibit an exacerbation of symptoms requiring surgical intervention in October 1993, the RO has recognized this, assigning a temporary total convalescent rating for the hospitalization during which the surgery took place as well as for a subsequent period of convalescence. The symptoms shown on examination in February 1994, mild laxity, positive apprehension test, negative drawer sign, and negative grind do not reflect more than moderate knee disability. The limitations of motion noted, flexion to 120 degree and extension to 3 degrees, do not warrant ratings in excess of 30 percent under the limitation of motion codes, 5260, 5261. Thus, there is no schedular basis for rating the veteran's service- connected right knee disorder more than 20 percent disabling. In addition, consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991), including the provisions of §§ 4.40, 4.45, and 4.59 regarding impairment due to painful motion. The Board finds that the rating currently in effect encompasses the painful motion present, and that the evidence discussed above does not suggest that the veteran's service-connected right knee disorder presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1993). For example, the right knee disability did not recently require frequent periods of hospitalization, nor does it present marked interference with employment that is not already contemplated by the current evaluation. It is noteworthy here again that when the knee disorder was manifested by greater impairment and required surgery, the RO recognized this by assigning a temporary total rating for the surgery and convalescence. ORDER Restoration of a 30 percent evaluation for postoperative residuals of a right knee meniscectomy is denied. GEORGE R. SENYK 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.