BVA9506232 DOCKET NO. 93-11 228 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased (compensable) evaluation for a service-connected right knee disability (chondromalacia). 2. Entitlement to an increased (compensable) evaluation for a service-connected left knee disability (chondromalacia). 3. Entitlement to an increased (compensable) evaluation for service-connected otitis media. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty from December 1971 to September 1985. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 1991 rating decision of the St. Louis, Missouri, Department of Veterans Affairs Regional Office (VARO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that her service-connected disabilities, for which she currently seeks increased ratings, are of sufficient severity so as to warrant higher disability ratings. 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(s). 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 preponderance of the evidence is against increased (compensable) ratings for the appellant's service-connected right knee, left knee and otitis media disabilities. FINDINGS OF FACT 1. The current medical evidence of record is negative for crepitus, subluxation, or lateral instability of either knee; flexion of the right knee is to 140 degrees and flexion of the left knee is to 135 degrees. 2. The current medical evidence of record does not demonstrate chronic otitis media, as manifested by a continuance of the suppurative process. CONCLUSIONS OF LAW 1. The evidence does not warrant the assignment of a compensable rating for the appellant's service-connected right knee disability. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 3.321, Part 4 Code 5257 (1994). 2. The evidence does not warrant the assignment of a compensable rating for the appellant's service-connected left knee disability. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 3.321, Part 4 Code 5257 (1994). 3. The evidence does not warrant the assignment of a compensable rating for the appellant's service-connected otitis media. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 3.321, Part 4 Code 6200 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that her claims are well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate review purposes by the VA, and that a disposition on the merits is now in order. The appellant is seeking higher (compensable) disability evaluations for her service-connected knee disabilities (chondromalacia of the patella, bilateral) and for her otitis media. 38 U.S.C.A. § 1155 (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1994); Peyton v. Derwinski, 1 Vet.App. 282 (1991). Chondromalacia of the Right and Left Knees After having reviewed all of the relevant medical evidence, the Board is of the opinion that the appellant is appropriately rated for her service-connected right and left knee disabilities each at the noncompensable disability rating level. The appellant's subjective complaints of bilateral knee pain, with associated swelling, noted throughout the record in this case, have been considered; however, the Board assigns the greater weight of probative value to the objective medical evidence, in particular, the recent VA compensation examination (VAX) conducted in August 1992. Clinical findings made at that time were negative; range of motion of the left knee was nearly full (0 to 135/140 degrees), while range of motion of the right knee was full (0 to 140 degrees). In addition, there was no evidence of effusion, locking, catching, laxity or joint line tenderness in either knee. X-rays taken on August 26, 1992, were reported as normal on VA outpatient treatment report dated in November 1992. Evaluation of her knees at that time revealed unimpaired range of motion in each knee. Clinical findings on VAX conducted in August 1991, as well as on outpatient evaluations conducted in February 1991, and in March and July 1992, were essentially consistent with the findings made on examination in 1992. According to the Schedule for Rating Disabilities, slight impairment of the knee warrants a 10 percent rating. 38 C.F.R. Part 4, Code 5257 (1994). However, where the minimum schedular evaluation requires residuals and the schedule does not provide a no-percent evaluation, a no-percent (noncompensable) evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31 (1994). In the opinion of the Board, the current disability picture presented with respect to the appellant's knee disabilities does not support compensable rating for either knee. Clinical findings on recent VAX conducted in August 1992, reveal that the range of motion of her knees was well within normal limits and there was no evidence of effusion, crepitus, locking, catching, laxity or joint line tenderness. The balance of the medical evidence of record shows essentially equivalent findings. Based on these findings, and in accordance with the provisions of 38 C.F.R. §§ 4.7, 4.20, the undersigned concludes that the disability picture presented does not support a compensable evaluation under the pertinent schedular criteria for her knee disabilities. 38 C.F.R. § 4.31, Code 5257 (1994). The appellant's complaints of discomfort and pain have been considered; however, such complaints appear to be unrelated to the level of symptomatology objectively demonstrated by the medical evidence of record and therefore, cannot serve as a basis for a compensable evaluation. 38 C.F.R. § 4.40 (1994). Otitis Media According to the Schedule for Rating Disabilities, chronic otitis media, manifested by a continuance of the suppurative process, warrants a 10 percent rating. 38 C.F.R. Part 4, Code 6200 (1994). However, where the minimum schedular evaluation requires residuals and the schedule does not provide a no-percent evaluation, a no- percent (noncompensable) evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31 (1994). In the opinion of the Board, the current disability picture presented with respect to the appellant's otitis media does not support compensable evaluation. Clinical findings on recent VAX conducted in September 1992, were essentially negative; her eardrums were normal and tuning fork test revealed air conduction greater than bone conduction in both ears. The remainder of the examination was negative for any pertinent abnormalities of the ears. The balance of the medical evidence of record shows essentially equivalent findings (service medical records and report of VAX conducted in September 1986). Notwithstanding the appellant's complaints of recurrent episodes of ear infections requiring antibiotics every two to four months, noted on VAX in September 1992, VA outpatient treatment reports dating from February 1991 through November 1992, show only one complaint related to her ears. In February 1991, the appellant complained of a right earache and sinus headache on the past three to four days duration. A reported history of recurrent sinus infections was noted. In view of these findings, together with the result of the 1992 VAX, it is the opinion of the Board that the objective medical evidence does not show "chronic" otitis media, manifested by a continuance of the suppurative process. As such, a compensable evaluation under code 6200 is not in order. Extraschedular Consideration Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1994). There is no evidence that the appellant's service-connected knee and ear disabilities present 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. As correctly noted by VARO, there is no evidence which affirmatively demonstrates that she was denied employment by the United States Postal Service or by any other potential employer by reason of her service-connected knee disabilities. Hence, referral by VARO to VA officials under the above-cited regulation was not required. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required under the provisions of 38 U.S.C.A. § 5107(b) (West 1991). ORDER An increased disability rating for a right knee disability is denied. An increased disability rating for a left knee disability is denied. An increased disability rating for otitis media is denied. KENNETH R. ANDREWS, JR. 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.