BVA9501617 DOCKET NO. 93-08 019 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for a left knee disorder, currently evaluated 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from January 1941 until October 1945. This matter comes before the Board of Veterans' Appeals (the Board) from rating decisions of the St. Petersburg, Florida Regional Office which denied an increased rating for the service- connected left knee disorder. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that the symptoms associated with his service-connected left disorder knee disorder include constant and severe aching pain and instability which are more severely disabling than reflected by the currently assigned disability evaluation. He contends that he is severely restricted in his everyday activities including walking, and has become virtually immobilized on account of left knee symptomatology. It is maintained that a higher disability evaluation is warranted in his case. 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 record supports a 40 percent evaluation for the service-connected left knee disability on an extraschedular basis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The service-connected left knee disorder is manifested by findings which include severe hypertrophic degenerative joint disease, effusion, marked narrowing of the patellofemoral joint space, lateral subluxation of the proximal tibia and significant relaxation of the medial collateral and cruciate ligaments which require the use of a brace. 3. An exceptional left knee disability picture is demonstrated. CONCLUSION OF LAW Resolving the benefit of the doubt in favor of the veteran, the left knee disability is 40 percent disabling when considered on both a schedular and an extraschedular basis. 38 U.S.C.A. § § 1151, 5107 (West 1991); 38 C.F.R. § 3.321 and Part 4, Diagnostic Code 5257 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim has been determined to be well-grounded within the meaning of 38 U.S.C.A. 5107(a). That is, he is found to have presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The service medical records reflect that the veteran sought treatment in March 1945 for recurring pain of the left knee which he indicated had come about after experiencing a sudden sharp pain while descending a ladder two months before. Physical examination of the knee disclosed some tenderness to pressure, swelling and evidence of fluid. A snug elastic band was administered and pain and swelling were observed to have disappeared when he was seen in follow-up approximately one week later. It was reported that no defects were noted upon discharge for active duty. The veteran filed a claim for service connection in 1946 indicating that he had "water" on the left knee. By rating action dated in May 1946, service connection for the left knee was granted and a noncompensable evaluation was assigned. The postservice record reflects that the veteran underwent arthrotomy of the left knee at a Department of Veterans Affairs (VA) facility in January 1947 following complaints of buckling and swelling of two years' duration. A diagnosis of internal derangement was rendered in April 1947 for which excision of the medial meniscus was performed. By rating action dated in May 1947, the disability evaluation for the service-connected left knee was increased to 20 percent disabling. The veteran was afforded a VA compensation and pension examination in March 1951 and continued to have complaints of weakness, pain and buckling. Osteoarthritic changes of the left knee were observed on X-ray. The next clinical data appear in the record in 1976 when he was shown to have sought treatment for similar complaints and findings. On VA examination in May 1977, it was reported that he had full range of motion but moderate instability was noted. He indicated that he currently wore a knee brace for support. By rating action dated in June 1977, the disability evaluation for the service-connected left knee was increased to 30 percent. ' 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. Dislocation of the semilunar cartilage of either knee with frequent episodes of locking, pain and effusion into the joint warrants a 20 percent evaluation 38 C.F.R. Part 4, Code 5258. Moderate impairment of either 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. VA outpatient clinical records dating from March 1991 through February 1992 were received noting that the veteran had been told that he needed a total knee replacement and that this was his only effective remedy. He was reported to have complaints of a great deal of pain as well as findings which included medial instability, deformity of the knee and tenderness of the medial joint line. Radiological studies were reported to show severe degenerative arthritis of the medial compartment. The veteran was afforded a VA compensation and pension examination in February 1993. The examiner recited medical history relating to the left knee and noted that an X-ray in that clinic in August 1992 had shown that the medial joint line compartment was markedly narrowed as well as the patellofemoral joint space. It was reported that spurs were observed rising from the articular borders of the medial tibial plateau and posterior margin of the patella. There was lateral subluxation of the proximal tibia. An impression of severe hypertrophic degenerative joint disease, minimal suprapatellar effusion was rendered. The examiner noted that the veteran was approaching the point of whether he might have needed an artificial knee. It was related that complaints of knee pain, stiffness and swelling were voiced on current examination. The veteran was noted to have a steel brace which had previously been prescribed by the VA. The left knee was described as evidencing a bony-type swelling. There was a seven-inch vertical scar running around the patella on the medical side. Range of motion was from 0 to 115 degrees. It was noted that upon facing the examiner, there was a lateral displacement of the leg on the thigh at the knee joint consistent with the X-ray findings. There was significant relaxation of the medial collateral and cruciate ligaments. No palpable or audible grinding was felt or heard. There was some suggestion of effusion in the suprapatellar space. The appellant was observed to have a significant amount of atrophy of the calf muscles as well as mild atrophy of the thigh muscles on the left side. The record in this instance clearly demonstrates that the veteran has substantial left knee pathology which is already rated as severe for which he is in receipt of a 30 percent disability evaluation. It has been determined that he is a good candidate for a total knee replacement. However, the 30 percent evaluation is the maximum schedular rating for a service-connected knee disorder in the absence of ankylosis, severely restricted motion or nonunion of the tibia and fibula. 38 C.F.R. § 3.321 provides that in exceptional cases where the schedular evaluation is found to be inadequate, an extraschedular evaluation commensurate with the average earning due exclusively to the service-connected disability may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Board finds in this instance that the myriad debilitating left knee symptoms the veteran currently experiences encompass such findings as atrophy of the thigh and calf, severe arthritis, deformity and obvious lateral displacement which are found to significantly exceed the criteria established by Diagnostic Code 5257 under which he is now rated. It is found that the regular schedular standards do not adequately contemplate the more substantial degree of disability now evidenced and that an exceptional left knee disability picture is demonstrated for which extraschedular consideration is required. The benefit of the doubt is thus resolved in the appellant's favor by finding that the service-connected left knee disorder warrants a 40 percent disability evaluation on an extraschedular basis. ORDER A 40 percent disability evaluation for the left knee disorder is granted subject to controlling regulations governing the payment of monetary awards. BRUCE KANNEE 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.